Most people in a customary marriage cannot say, with any confidence, whether their marriage is in or out of community of property. That uncertainty rarely matters until it suddenly does, on divorce, on the death of a spouse, or when a bank, an executor or a court starts asking questions. The answer sits in section 7 of the Recognition of Customary Marriages Act 120 of 1998, read together with the Constitutional Court’s decisions in Gumede and Ramuhovhi and the amendments introduced by the Recognition of Customary Marriages Amendment Act 1 of 2021.
This guide explains how a customary marriage in community of property arises by default, when it does not, and what the current statutory position is for monogamous unions, polygynous unions, and marriages concluded before the RCMA came into operation on 15 November 2000. It also sets out the practical consequences for consent, joint estate administration, divorce and deceased estates. It is a general legal explainer. It is not advice on any specific facts.
Why the property regime of a customary marriage is not obvious
The regime governing a customary marriage depends on several moving parts: the date the marriage was concluded, whether it is monogamous or polygynous, whether an antenuptial contract was signed before the marriage, and, in polygynous cases, whether a court-approved contract under section 7(6) of the RCMA is in place. A marriage certificate does not tell a reader which regime applies. Neither does lobola on its own. Even long-married spouses often assume, wrongly, that customary marriages are always out of community of property.
The customary marriage property regime also carries direct consequences that many spouses only encounter later. It determines whether a spouse can transact freely or needs written consent for certain dealings. It determines how assets are divided on divorce. It determines what a surviving spouse can claim from a deceased estate before inheritance is considered at all. Getting the answer right early is far cheaper than fixing it in litigation.
Customary marriage in community of property: the section 7(2) default for monogamous unions
The default rule for a monogamous customary marriage is set out in section 7(2) of the RCMA. Since the 2021 amendment, section 7(2) provides that a customary marriage in which a spouse is not a partner in any other existing customary marriage is a marriage in community of property and of profit and loss, unless those consequences are specifically excluded by the spouses in an antenuptial contract that regulates the matrimonial property system of their marriage.
Two consequences follow from that wording. First, a customary marriage in community of property is the starting point for monogamous unions unless a valid antenuptial contract says otherwise. Second, section 7(3) then pulls in Chapter III and sections 18, 19, 20 and 24 of the Matrimonial Property Act 88 of 1984, so the same joint estate machinery that applies to a civil marriage in community of property applies here too.
When the default does not apply
The default gives way in three situations that come up in practice. The first is where the spouses signed a valid antenuptial contract before the customary marriage was concluded. The second is where a court has ordered a change of regime under section 21 of the Matrimonial Property Act, which section 7(5) of the RCMA makes applicable to post-Act monogamous customary marriages. The third is where a court granted a change of regime for a pre-Act customary marriage under section 7(4) of the RCMA. None of these routes is automatic, and each has its own procedural requirements.
Customary marriage before 2000: the Gumede judgment and the 2021 amendment
For many years, section 7(1) of the RCMA drew a sharp line between customary marriages entered into after the Act commenced on 15 November 2000 and those entered into before. Monogamous pre-Act marriages remained governed by customary law on property, which in practice often meant husbands controlled marital property while wives had limited proprietary rights.
The Constitutional Court corrected that position in Gumede v President of the Republic of South Africa 2009 (3) SA 152 (CC). The Gumede judgment held that this differentiation was unconstitutional and read the position of monogamous pre-Act customary marriages onto the same footing as post-Act unions. In practical terms, a monogamous customary marriage before 2000 is now treated as being in community of property and of profit and loss, subject to any valid antenuptial contract concluded before the marriage.
The legislature has since carried Gumede into the statute itself. The Recognition of Customary Marriages Amendment Act 1 of 2021 substituted section 7(1) and section 7(2) with effect from 1 June 2021, giving the position statutory footing rather than leaving it to constitutional read-in. That matters because the current position for a monogamous customary marriage before 2000 is now the same as for one concluded afterwards: the default is in community of property, unless properly excluded.
Polygynous customary marriages: section 7(6), and what happens when it is skipped
Polygynous customary marriages are governed differently, and this is where the most serious property disputes tend to arise.
Post-Act polygynous unions and the section 7(6) contract
Where a husband already in a customary marriage wishes to conclude a further customary marriage after 15 November 2000, section 7(6) of the RCMA requires him to apply to court for approval of a written contract that regulates the future matrimonial property system of his marriages. Section 7(7) then sets out the powers of the court, including terminating an existing joint estate, effecting a division and ensuring an equitable distribution. Section 7(8) requires all existing spouses to be joined.
If that court-approved contract is not put in place, the position is not that the further marriage is automatically invalid, nor that everything simply falls into community of property. The precise proprietary consequences depend on the facts and on how the marriages are recognised in the specific case. What can safely be said is that the surviving or existing spouses are placed in a weaker and more uncertain position than they would have been if the section 7(6) process had been followed, and litigation is often needed to sort out the resulting rights. The mechanics of what happens where section 7(6) has been skipped are addressed in Vermeulen Attorneys’ article on the section 7(6) contract for a further customary marriage, which is the correct next read for anyone in that position.
Pre-Act polygynous unions: the Ramuhovhi judgment and section 7(1) as amended
For polygynous customary marriages entered into before the RCMA commenced, section 7(1) originally left the position to customary law, which in many communities gave husbands sole control of marital property. The Constitutional Court held in Ramuhovhi v President of the Republic of South Africa 2018 (2) SA 1 (CC) that this was unconstitutional. Pending legislative correction, the Ramuhovhi judgment ordered that spouses in such marriages hold joint and equal ownership and other rights, and joint and equal rights of management and control, over marital property.
The 2021 Amendment Act has now substituted section 7(1) itself. As it currently reads, spouses in a pre-Act polygynous customary marriage have joint and equal ownership and other rights, and joint and equal rights of management and control, over marital property. Those rights are exercised in respect of house property jointly by the husband and the wife of the house concerned in the best interests of that house, and in respect of family property jointly by the husband and all the wives in the best interests of the whole family. Each spouse retains exclusive rights over personal property. “Marital property”, “house property”, “family property” and “personal property” continue to carry their customary law meanings.
Two practical points follow. First, the Ramuhovhi judgment is no longer standing alone; it has been carried into the statute, and the current answer for pre-Act polygynous unions is found in section 7(1) as amended. Second, spouses in these marriages have proprietary rights that they may not realise they hold, and those rights are enforceable in exactly the same way as any other statutory right.
If you are in a polygynous customary marriage and the section 7(6) process was not followed, or if you are unsure what your rights look like under section 7(1) as amended, this is the point at which legal advice is worth taking early. Vermeulen Attorneys advises clients on both divorce and deceased-estate consequences of polygynous customary marriages. You can contact us for a consultation.
Antenuptial contracts, the Matrimonial Property Act, and the timing rule
Section 7 of the RCMA sets the default regime. The Matrimonial Property Act 88 of 1984 then governs how each regime actually operates and how it can be displaced by contract. Understanding how these two Acts work together is essential.
When an ANC validly displaces the default
An antenuptial contract can validly exclude community of property, and can introduce the accrual system or a full separation regime, only if it is concluded before the customary marriage is entered into. The contract must be executed before a notary public and registered in the Deeds Registry in accordance with the Matrimonial Property Act. Where those requirements are met, the ANC displaces the section 7(2) default and the regime chosen by the spouses applies from the date the marriage is concluded.
For polygynous customary marriages, an ANC on its own does not do the whole job. Where a husband wishes to enter a further customary marriage after 15 November 2000, a court-approved contract under section 7(6) of the RCMA is still required to regulate the matrimonial property system across all of his marriages.
What happens when an ANC is signed after the wedding
An “antenuptial” contract is, by definition, a contract concluded before the marriage. A document signed after the customary rites have been performed cannot function as an ANC and does not retrospectively change the regime. If the marriage was in community of property before the document was signed, it remains in community of property afterwards.
The only route to change the regime after the marriage has been concluded is an application to the High Court under section 21 of the Matrimonial Property Act. Section 7(5) of the RCMA specifically makes section 21 available to post-Act monogamous customary marriages, and pre-Act customary marriages have their own route under section 7(4) of the RCMA. Both routes require notice to creditors, satisfaction of the court that there are sound reasons for the change and that no person will be prejudiced, and the drafting and registration of a new notarial contract. It is possible, but it is a formal court process, not a paperwork fix.
Registration under section 4: proof, not regime
Section 4 of the RCMA requires customary marriages to be registered, but registration is not a requirement for validity, and it does not determine the property regime. A monogamous customary marriage validly concluded in accordance with customary law and section 3 of the RCMA is in community of property under section 7(2) whether or not it has been registered.
The practical significance of registration is evidential. A registration certificate is convenient proof of the marriage’s existence for banks, employers, the Department of Home Affairs, executors and courts. Where the marriage has not been registered, its existence must be proved by other means, including lobola negotiation records, evidence of the customary rites, and the testimony of family members who participated in or witnessed the marriage. The consequences of not registering are addressed in Vermeulen Attorneys’ article on whether an unregistered customary marriage still valid.
What a customary marriage property regime means in day-to-day life
Where a customary marriage is in community of property, section 7(3) of the RCMA pulls the Matrimonial Property Act mechanics into the marriage. That has real consequences during the marriage itself, not only on divorce or death.
Joint estate management and section 15 consent
Both spouses jointly own and jointly manage the estate. Each spouse can generally act independently on ordinary transactions. Certain significant dealings, however, require the written consent of the other spouse under section 15 of the Matrimonial Property Act. These typically include selling or mortgaging immovable property, entering into certain credit agreements, disposing of valuable assets, withdrawing investments, and standing surety. Where consent is required and not obtained, the transaction may be challenged.
Third-party dealings
Third parties dealing with a spouse in a joint estate are protected in certain circumstances by the Matrimonial Property Act, but not universally. Banks, credit providers and property professionals routinely ask for a spouse’s consent precisely because the statute requires it. Spouses in a customary marriage property regime that is in community of property need to understand which dealings need consent, and which do not, before signing.
On divorce: what happens to the joint estate
Where a customary marriage in community of property is dissolved by divorce, the joint estate is divided between the spouses. Section 8 of the RCMA provides that a customary marriage may only be dissolved by a court on the ground of irretrievable breakdown, and the same Chapter III mechanics of the Matrimonial Property Act that governed the marriage govern the division. The court retains a discretion to make orders that give effect to a fair outcome, including where forfeiture is claimed and proved.
Where the regime is out of community of property with accrual, the accrual system determines what is shared at the end of the marriage. Where it is out of community of property without accrual, each spouse leaves with what they own, subject to any maintenance or redistribution claim that may be available on the specific facts. The process, including the powers of the court, is discussed in Vermeulen Attorneys’ article on divorce from a customary marriage.
On death: what the surviving spouse can claim
Where a customary marriage was in community of property and one spouse dies, the joint estate does not simply fall into the deceased estate as a whole. The surviving spouse ordinarily retains their half share of the joint estate. Only the deceased’s half devolves for administration by the executor and distribution under the will or the law of intestate succession.
That distinction matters because executors and family members sometimes treat the entire joint estate as the deceased estate, or dispute whether the customary marriage existed at all. Where an executor refuses to recognise a surviving spouse, or applies the wrong property regime, the surviving spouse should seek legal advice promptly. The consequences of executor recognition and the evidentiary questions that surround it are addressed in Vermeulen Attorneys’ article on recognition of a customary marriage by executors.
If a section 29 notice has been published, or an executor has excluded or is threatening to exclude a surviving customary spouse, urgency matters. Deceased-estate litigation runs on statutory timelines, and delay narrows the options. Vermeulen Attorneys advises on surviving-spouse claims, executor disputes and section 35(7) objections. Contact us to arrange a deceased-estates consultation.
Warning signs your assumed regime may be wrong
Certain warning signs, drawn from the pattern of matters Vermeulen Attorneys sees, suggest a client’s assumed customary marriage property regime is not what they think.
- The discovery of a further customary marriage, or a “second wife”, that changes the union from monogamous to polygynous.
- An antenuptial contract that was signed after the customary rites, or that was never registered in the Deeds Registry.
- Uncertainty about the date on which the customary marriage was actually concluded, particularly around the November 2000 cut-off.
- A pre-2000 customary marriage that the client assumes is still governed only by customary law, without regard to Gumede, Ramuhovhi and section 7 as amended.
- A polygynous customary marriage entered into after 15 November 2000 without a section 7(6) court-approved contract.
Any one of these should prompt a careful review of the regime before a settlement agreement is signed, before an executor finalises a liquidation and distribution account, or before any further customary marriage is concluded.
When to speak to an attorney
Legal advice becomes urgent, rather than merely advisable, when a dispute is already in motion. Typical triggers include a divorce summons being issued, a section 29 notice being published in a deceased estate, an executor refusing to recognise a surviving spouse, or property in the joint estate being sold or transferred without the consent required under section 15 of the Matrimonial Property Act. Advice is also worth taking before signing anything: settlement agreements, section 7(6) contracts, and post-nuptial documents can all lock in positions that are difficult to reverse.
Frequently Asked Questions
Is a customary marriage automatically in community of property?
A monogamous customary marriage is in community of property and of profit and loss by default under section 7(2) of the RCMA, unless the spouses excluded that regime in a valid antenuptial contract concluded before the marriage. Polygynous customary marriages are governed differently and require closer attention to section 7(1) and section 7(6).
Does it matter if our customary marriage is not registered?
Registration under section 4 of the RCMA is not a requirement for validity, and it does not determine the property regime. It is important as evidence of the marriage. An unregistered customary marriage that meets the requirements of section 3 is still valid, and the section 7 regime still applies. The existence of the marriage may need to be proved by other means, including lobola records and witness evidence.
What if my husband entered a second customary marriage without telling me?
The property consequences depend on whether the further marriage was entered into before or after 15 November 2000, on whether the requirements of section 3 were met, and on whether a section 7(6) court-approved contract is in place. For pre-Act polygynous unions, section 7(1) as amended following the Ramuhovhi judgment gives spouses joint and equal rights of ownership, management and control over marital property. For post-Act unions without a section 7(6) contract, the position is fact-sensitive and often requires litigation. Legal advice should be taken early.
Was our pre-2000 customary marriage changed by Gumede?
For monogamous pre-Act unions, yes, in effect. The Gumede judgment held that treating monogamous pre-Act customary marriages differently was unconstitutional, and the position is now that a monogamous customary marriage before 2000 is treated as in community of property and of profit and loss, subject to a valid antenuptial contract. The position has since been carried into section 7(2) of the RCMA by the 2021 Amendment Act.
Can we sign an ANC after our customary wedding to change the regime?
No. An antenuptial contract must be concluded before the marriage. A document signed after the customary rites is not a valid ANC and cannot retrospectively change the regime. The only route to change the regime after the wedding is an application to the High Court under section 21 of the Matrimonial Property Act, or under section 7(4) of the RCMA for pre-Act marriages.
If my customary-marriage spouse dies, what do I get from the joint estate?
If the marriage was in community of property, the surviving spouse ordinarily retains their half share of the joint estate. Only the deceased spouse’s half devolves in the deceased estate for administration. Inheritance from the deceased’s half is a separate question, governed by the will or the law of intestate succession.
Speak to Vermeulen Attorneys
If you are unsure what property regime governs your customary marriage, or if you are facing a divorce, a deceased-estate dispute, or a decision about a section 7(6) contract, speak to Vermeulen Attorneys before signing anything. Our Recognition of Customary Marriages team advises on divorce, division of assets, surviving-spouse claims and executor disputes. Contact us to arrange a consultation on either the divorce or the deceased-estates pathway.
