The Recognition of Customary Marriages Amendment Bill: Much ado about nothing?
Author Fatima Osman
Affiliations: Senior Lecturer, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 137 Issue 3, p. 389-406
The Recognition of Customary Marriages Amendment Bill provides that spouses in polygamous marriages concluded before the commencement of the Recognition of Customary Marriages Act 120 of 1998 have joint rights of ownership, management and control over marital property. The Bill creates uncertainty by failing to explain what is meant by joint rights of ownership and control, which uncertainty is exacerbated by the incorporation of the terms ‘marital’, ‘personal’, ‘house’ and ‘family’ property without concrete definitions of these terms. The burden will fall to courts to re-imagine the antiquated definitions of these concepts in the current socioeconomic context. Moreover, the amendments are not reconciled within the existing legal framework. Consequently, women in polygamous marriages concluded before the Act’s commencement may, counter-intuitively, have greater rights than those women in polygamous marriages concluded after the commencement of the Act. The note thus argues for substantial revisions before the Bill is passed.