13 April 2017
Since many of the wives and children were unaware of the others’ existence, they all put in separate claims against the estate of their deceased husband and father. Unfortunately this turned the winding up of the estate into a messy and complicated affair, which eventually lasted for many years.
The Recognition of Customary Marriages Act (RCMA), which came into effect in November 2000, for the first time allowed customary marriages to be recognised as legally binding unions with the same status as civil unions. The Act addressed issues of equality in the marriage, and abolished the concept of marital power. In South Africa, you can now choose whether you want to get married in either a civil union or a customary marriage – the same legal rights will apply to both.
However, if you choose to enter a customary marriage, there are still some things you need to know, says Advocate Sankie Morata, Chief Operations Officer at Sanlam Personal Finance: Fiduciary Services. The most important of these is that, unless you have drawn up an antenuptial contract, all customary marriages are seen to be in community of property, which means that all assets (as well as any debt) belong to all the spouses equally.
"In the case of our wealthy businessman, because all his wives were married in community of property to the deceased, we needed everyone's consent to sell off certain farms he possessed, so you can imagine the complications arising from this and other financial arrangements which needed to completed," says Morata.
Other important considerations include:
"As in a civil union, it is very important in a customary marriage to inform your spouse(s) of all financial decisions and contractual obligations you may have. And it goes without saying that in a polygamous marriage, all spouses should know about each other! You need to have those crucial conversations as a family, before it is too late. Everyone needs to know what they will be entitled to, and what the financial arrangements will look like for the surviving spouse(s) and your children should you die," Morata concludes.