A husband who is already in a customary marriage and wants to take another wife cannot simply rely on lobola, family process and community recognition. Section 7(6) of the RCMA requires him to approach the court first, for approval of a written contract that regulates the property consequences of all his customary marriages. Skipping that step does not automatically invalidate the further marriage, but it produces serious property, divorce and deceased-estate problems that only surface later, often at the worst possible moment.
This article explains what section 7(6) of the RCMA requires, how it differs from an ordinary antenuptial contract, how it interacts with section 3 and the consent of the first wife, and what typically happens in practice when a husband proceeds with a second customary marriage in South Africa without complying with section 7(6).
What section 7(6) of the RCMA actually says
The Recognition of Customary Marriages Act 120 of 1998 recognises customary marriages as marriages for all legal purposes. Section 7 of the Act sets out the proprietary consequences of those marriages, and section 7(6) deals specifically with the situation where a man who is already in a customary marriage wishes to enter a further customary marriage.
Section 7(6) provides that such a husband must apply to the court for approval of a written contract that regulates the future matrimonial property system of all his marriages. Section 7(7) then tells the court what to do with that application. Where an existing marriage is in community of property or subject to the accrual, the court must terminate that matrimonial property system and effect a division of the matrimonial property. The court must ensure an equitable distribution of the property, and it must take into account all the relevant circumstances of the family groups that would be affected if the application is granted. The court may allow further amendments to the contract, grant the order subject to any condition it considers just, or refuse the application if the proposed contract does not sufficiently safeguard the interests of the parties.
Section 7(8) requires that all persons with a sufficient interest in the matter, and in particular the existing wife or wives and the prospective further wife, must be joined in the proceedings. Section 7(9) requires the registrar or clerk of the court to send the order and a certified copy of the approved contract to the registrar of deeds.
The purpose is straightforward. A polygynous customary marriage property regime affects more than two people. It affects existing wives, an incoming wife, children of different houses, and third parties who deal with the family. Section 7(6) puts a court between the husband’s private intentions and the proprietary rights of everyone else.
A court-approved contract is not a private ANC
The most common mistake we see is treating a section 7(6) contract as if it were an antenuptial contract. It is not.
An antenuptial contract regulates the matrimonial property system of two prospective spouses. It is signed before the marriage, executed before a notary, and lodged with the Deeds Office. No court approves it. The parties choose their regime and the state records it.
A court-approved customary marriage contract under section 7(6) is a different instrument. The husband must apply to court. The existing wife or wives and the prospective further wife must be joined. The court examines the proposed regime, tests whether it treats each affected family group equitably, and either approves it, amends it, imposes conditions, or refuses it. Only once the court has granted the order does the contract have legal effect, and the deeds registrar is then notified.
A privately drafted document titled “section 7(6) contract”, signed by the husband and the wives but never placed before a court, is not a section 7(6) contract at all. It is a piece of paper without the sanction the Act requires.
Section 7(6) and section 3: two different questions
Section 3 of the RCMA governs the validity of a customary marriage. It requires that both prospective spouses be over 18, that they both consent to be married to each other under customary law, and that the marriage is negotiated and entered into or celebrated in accordance with customary law.
Section 7(6) is not about validity. It is about property. The two provisions answer different questions, and it is important not to conflate them.
If the requirements of section 3 are met, but no section 7(6) contract has been obtained, the further customary marriage is not, on that ground alone, automatically invalid. What is affected is the property position. There is no court-sanctioned regime for the polygynous arrangement, and disputes about who owns what, and which house or family property belongs to whom, become inevitable.
If the section 3 requirements are not met, a section 7(6) contract does not cure the problem. A court-approved contract regulates property. It does not create a customary marriage where the underlying validity requirements were never satisfied.
The first wife’s consent sits inside the section 3 inquiry, not the section 7(6) inquiry. Constitutional Court authority has recognised that, in the customary law examined in that case, a further customary marriage entered into without the first wife’s consent is not valid. The principle has been influential, but it is not a blanket national rule that applies uniformly to every customary-law community. Whether the consent of the existing wife is required depends on the living customary law of the community concerned, and it must be proved on the evidence. Treating the first wife’s consent as an automatic national requirement over-reads the case law and misdescribes how customary law is applied by the courts. For deeper context on why RCMA property arrangements require judicial sanction rather than private paper, see our related discussion on court oversight of matrimonial property regimes in customary marriages.
What the section 7(6) application looks like in practice
A section 7(6) application is brought in the High Court or in the Regional Court, on notice of motion supported by affidavits. The husband is the applicant. The founding affidavit sets out the existing customary marriage or marriages, the intended further customary marriage, the current property arrangements, the assets and liabilities of the parties, and the terms of the proposed contract. The proposed contract itself is attached.
Notice must be given to every existing spouse and to the prospective further wife. Each is joined and allowed to file an answering affidavit. Family members and others with a sufficient interest may be joined if the facts require it. The court’s task, when it hears the matter, is to satisfy itself that the proposed regime is equitable and that the interests of every affected family group have been adequately considered.
There is no fixed timeline. An unopposed application, with full disclosure and consenting spouses, can move relatively quickly. Where any spouse opposes, where assets and liabilities are complex, or where existing wives have not been properly identified or joined, the matter can take considerably longer.
The most common procedural traps we see are:
- Late applications. The husband celebrates the further customary marriage first and only then instructs attorneys to prepare a section 7(6) application. The Act contemplates approval before the further marriage, not after it.
- Incomplete disclosure. Assets, liabilities, business interests and immovable property are left out of the founding papers, and the court is not put in a position to assess equitable distribution.
- Omitting existing wives from the notice. A further wife or a wife from another region is not identified or joined. The section 7(8) joinder requirement is not optional.
- A privately drafted court-approved customary marriage contract. No court order, no notice, no joinder. The document has no effect.
If your family is contemplating a further customary marriage in South Africa, or you are the existing spouse being asked to consent to one, this is the stage at which to obtain proper legal advice. Contact Vermeulen Attorneys to discuss the application before the further marriage is celebrated.
What happens if the husband skips section 7(6)
The consequences of a further customary marriage without contract fall into three broad categories.
Property confusion during the marriage. The default proprietary regime for a customary marriage in which the spouse is not a party to any other customary marriage is in community of property. Once a further customary marriage without contract is contracted, the neat two-party regime breaks down. Ownership of house property, family property and personal property has to be worked out under customary-law principles and against the terms of the RCMA, without the guidance of a court-sanctioned regime. Third parties transacting with the family, including banks and the Deeds Office, may struggle to identify who has authority to dispose of what. A polygynous customary marriage property regime is exactly the kind of arrangement the Act intended courts, not private drafters, to sanction.
Difficulty on divorce. When a customary marriage is dissolved, the court exercises the powers of a divorce court over the property. Where a section 7(6) contract was never obtained, the court on divorce must untangle the position from first principles, on the facts as they emerge in evidence, without the benefit of a pre-agreed and court-sanctioned regime. This makes the matter longer, more contested, and more expensive. If you are contemplating dissolution in circumstances like these, our guide to divorce from a customary marriage in South Africa explains what to expect.
Estate consequences on death. When the husband dies, the Master’s Office and the executor must decide which spouses have recognised status, what portion of the estate is joint, and what falls into house or family property. Without a section 7(6) contract, competing claims from wives of different houses become common, and litigation is often required to determine the outcome.
None of these consequences involves the further marriage being automatically declared void. The problem is proprietary, not existential. But the problems are real, and they usually surface at moments when the family can least afford them.
Warning signs for a first wife, and what to do
Some first wives learn about a further customary marriage only after it has been celebrated. Others notice preparations and do not know what to make of them. Common warning signs include:
- discussions inside the husband’s family about lobola negotiations with another family;
- increased involvement of family elders or traditional leaders in a way that suggests preparations for a further customary marriage;
- preparations for customary rituals, celebrations or family gatherings linked to a prospective wife;
- the husband acquiring properties, vehicles, livestock or other assets that appear to prepare for a new household;
- references by the husband or his family to a new wife, a second home, or reviving a dormant household;
- an attempt to register a further customary marriage with Home Affairs.
The first wife’s consent, on the community-specific inquiry described above, may or may not be required for validity under section 3. What is not in doubt is that her proprietary rights are affected. Practical protective steps include gathering the marriage certificate, lobola letters or agreements, photographic and witness evidence of the customary marriage, and a schedule of family assets and any existing antenuptial contract, and obtaining early legal advice. Where there is a genuine dispute about validity or an immediate threat to matrimonial or estate assets, urgent High Court relief, including an interdict, a declaratory order, or estate-protection relief, may become necessary.
Deceased estates: what executors face when there is no section 7(6) contract
Executors regularly encounter estates where the deceased had entered a further customary marriage during his lifetime without ever obtaining a section 7(6) order. The estate cannot simply proceed on the assumption that the further marriage is void, and it cannot proceed on the assumption that it is fully valid with property consequences to match. Both assumptions can be wrong.
The correct approach is to establish, first, whether the further customary marriage was validly concluded under section 3, including the community-specific consent inquiry, and, second, what the proprietary consequences are in the absence of a section 7(6) contract. The two questions are separate, and each has to be resolved on the facts.
The common disputes we see in these estates are validity challenges (often supported by an interdict to prevent distribution while validity is being determined), fights about proprietary consequences and about which house owns what, and disputes about spousal status for purposes of intestate succession and maintenance of surviving spouses.
Vermeulen Attorneys typically resolve these by working through the section 3 validity question and the section 7(6) property question in sequence, so that the vulnerable spouses and children of each house are properly protected, and the estate can be administered on a defensible legal footing.
When to get attorneys involved
Get attorneys involved early in any of the following scenarios:
- you are a husband contemplating a further customary marriage and need to apply to court for a section 7(6) contract before the marriage;
- you are a first or existing wife who has learned that a further customary marriage may be, or has already been, contracted;
- you are a prospective further wife who wants to understand what property regime you are about to enter;
- you are the executor of an estate that involves a further customary marriage with no section 7(6) order on record;
- there is any threat to matrimonial or estate assets pending resolution of these questions.
The single most dangerous assumption in this area is that all customary marriages sit inside the same legal framework and can be dealt with the same way. They do not. The legal position is community-specific, section-specific and fact-specific, and an attorney is required to work through the consequences in each case.
Frequently Asked Questions
Is my husband’s further customary marriage valid if he did not get a court-approved contract under section 7(6) of the RCMA?
Not automatically invalid. Section 7(6) of the RCMA governs the property consequences of a further customary marriage, not its validity. Validity is governed by section 3 and, in some customary-law communities, includes the consent of the existing wife. The absence of a section 7(6) contract creates serious property problems and disputes on divorce or death, but it is not the same as saying the second customary marriage in South Africa is void.
As the first wife, do I have to consent to a further customary marriage?
Whether the first wife’s consent is required depends on the customary law of the community concerned. Constitutional Court authority has recognised, in the customary law examined in that case, that a further customary marriage without the first wife’s consent is not valid. Whether the same rule applies in your community must be established on the evidence. What is not in doubt is that your proprietary rights are affected, and you should obtain advice as soon as you become aware that a further customary marriage may be in contemplation.
What must a section 7(6) contract include, and which court approves it?
The written contract must regulate the future matrimonial property system of all the husband’s customary marriages. It typically deals with the termination and division of any existing in-community-of-property or accrual regime, the treatment of house property and family property, and the position of each spouse’s personal property. An application for a court-approved customary marriage contract is brought to the High Court or the Regional Court, on notice of motion, with all existing spouses and the prospective further wife joined.
What happens to the joint estate if a further customary marriage is entered without a section 7(6) contract?
There is no court-sanctioned mechanism to terminate the existing in-community regime and to substitute a fair polygynous customary marriage property regime in its place. The result is a further customary marriage without contract sitting alongside an unresolved joint estate. On divorce or death, the court has to work out the position from first principles, and disputes between houses about who owns what are common.
Can lobola and family consent replace a section 7(6) court order?
No. Lobola, family process and community recognition are relevant to the section 3 validity inquiry. They do not cure the absence of a court-approved customary marriage contract under section 7(6). A privately drafted document, however carefully written, does not have the legal effect the Act requires unless it has been placed before a court and approved.
Speak to Vermeulen Attorneys
If any part of the position described here applies to you, whether you are planning a further customary marriage, responding to one, or administering an estate that involves one, get legal advice before the property position hardens. Vermeulen Attorneys’ customary marriage practice advises husbands, wives, prospective further wives, family members and executors on section 7(6) applications, validity challenges under section 3, divorce from customary marriages, and deceased-estate disputes. Book a consultation to work through the facts of your matter.
