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Since colonial times, Christian marriage has been taken as a sign not only of religious commitment but also as an indication that the spouses decided to follow a westernized way of life. This assumption had a direct bearing on what law was chosen to govern the marital relationship: the form of marriage was deemed to indicate the spouses' intention that their rights and duties inter se and their relations with their children should be governed by common law.
The uniform application of common law had the advantage of providing a single, straightforward answer to all potential choice of law problems, but it ran the risk of not co-inciding with the parties' actual expectations. Spouses might have contracted a Christian marriage as a matter of conscience, with no intention of abandoning customary law, an attitude which is apparent from the almost invariable companion to a church marriage: a bridewealth agreement.
Where couples decided to marry in a church or registry office, the courts have had no hesitation in applying the common law to determine actions for damages for breach of promise. This approach is in line with the general principle that effect should be given to the parties' presumed expectations.
Capacity to marry by civil or Christian rites is governed by common law.[34]
In South Africa it has been taken for granted that only Africans have a choice of marrying by civil/Christian or customary rites; those subject to common law are assumed to be capable of marrying only according to civil or Christian rites. This assumption is without foundation, since under ss 15, 30 and 31 of the Constitution all people in the country are free to pursue the religion and culture of their choice.
Once the parties have decided to marry in a church or registry office, they have to comply with the various requirements of the common law.[35]
Prospective husbands have to observe special formalities in s 22(2) and (3) of the Black Administration Act which are designed to protect the wives of existing customary marriages. They must declare before the marriage officer that they are not already married under customary law to another woman. While persons who contravene this rule or make a false declaration are liable to criminal penalties,[36] the validity of their marriages is not affected.
A marriage by civil or Christian rites generally subjects the spouses to a common-law status, with the result that common law regulates the parent-child relationship (determining inter alia whether children are legitimate) and any relationships the spouses might have with third parties (which might give rise to a delict of adultery).
Originally, under common law, the spouses were deemed to be married in community of property and of profit and loss and the wife fell under her husband's marital power.[37] These automatic consequences were variable by antenuptial contract. When the Black Administration Act was passed in 1927, Africans were given a special dispensation to save them from being caught unawares by an unfamiliar legal regime. Hence s 22(6) provided that a civil/Christian marriage would not produce a community of property between the spouses (unless they made a prenuptial declaration specially requesting this)[38] and that the wife remained subject to her husband's marital power.[39] Thus, in most cases, marriage was out of community of property.
The common law regarding both the matrimonial property regime and marital power was changed in 1984.[40] In 1988, s 22(6) of the Black Administration Act was repealed and African marriages were brought into line with this reform.[41] As a result all civil and Christian marriages are now automatically in community of property and of profit and loss and the husband's marital power is excluded. These consequences may be avoided only by antenuptial contract.[42]
The 1988 amending Act was not retrospective, but it made special provision for spouses whose matrimonial property system was previously governed by s 22 of the Black Administration Act to harmonize the consequences of their marriage with the new laws by executing and registering notarial contracts two years after the commencement of the 1988 Act.[43]
It is generally accepted that both the procedure and grounds for dissolving a civil or Christian marriage are governed by common law.[44] Nevertheless, courts granting orders of divorce on the ground of irretrievable breakdown have sufficient discretion to allow them to take account of cultural factors that might have influenced the spouses' relationship.[45]
Common law is presumed to govern post-nuptial maintenance, the proprietary consequences of the divorce and the custody and guardianship of minor children.[46] Continued application of common law to these issues seems unobjectionable. The principles regulating maintenance are strongly influenced by equity and a concern to protect the economically weaker spouse and children; rules determining custody and guardianship give full expression to s 28(2) of the Constitution, namely, that the best interests of the child are of paramount importance; and the common law governing distribution of property is more likely to protect wives from a potentially discriminatory customary regime.
Under common law, when a spouse dies the marriage is automatically terminated and with it the various rights and duties regulating the spouses' lives. Logic might demand that, if the parties were subject to customary law, the personal law of a surviving spouse (and children) should revive to govern his or her status once a marriage ends. On this question, however, no consistent approach is discernible.
The courts have held that common law continues to apply to the custody and guardianship of minor children,[47] but customary law may well regulate a surviving spouse's status as a minor or major,[48] and in practice succession to the deceased estate is nearly always governed by customary law.[49]
It is true that special regulations provide for the application of common law to succession, but for this to happen certain conditions must be met. The deceased, at the time of death, must have been married in community of property, which would imply that the spouses made an antenuptial contract or a prenuptial declaration under s 22(6) of the Black Administration Act.[50] Yet, because few Africans availed themselves of these opportunities, customary law is normally applicable. Thus, for all intents and purposes, the widow of a civil or Christian marriage is in the same vulnerable position as the widow of a customary marriage: she has no more than a personal right against the heir for maintenance out of the estate. Her position may be improved only if she claims under the Maintenance of Surviving Spouses Act.[51]
Although the courts have declared that bridewealth is not essential for the validity of a civil or Christian marriage, nearly all Africans who marry according to these rites have an accompanying bridewealth contract.[52] The co-existence of two legal relationships is bound to generate contradictory obligations. According to common law, the marriage is exclusively the concern of the bride and groom, whereas, according to customary law, bridewealth involves the groom and the bride's guardian. In the event of a conflict, which obligations are to prevail?
The courts have decided that bridewealth is ancillary to the marriage and therefore modified by the principles on which the union is based.[53] Thus, in what are probably the most litigated issues - claims for return of bridewealth[54] and parental rights to children[55] - the courts applied common law standards. In following this trend, the Law Commission proposed that a decree of divorce should operate to end any bridewealth agreement.[56]
No such categorical solution is possible where the marriage is ended by the death of a spouse. As mentioned above, according to the common law death automatically terminates a marriage but under customary law the union continues until bridewealth obligations have been settled.[57] The widow was never party to the agreement, however, so there is no reason why her freedom of action should be circumscribed by it. (And it is clear that marriage accompanied by bridewealth does not imply two separate unions; the civil/Christian union is the only marriage.) To be consistent with the rule that bridewealth is subordinate to the marriage, therefore, the contract should end once the marriage ends.
The courts, however, adopted an expedient approach - and one that is probably in more accord with the parties' expectations - by supporting continuation of the bridewealth agreement, even after the marriage. On this basis they awarded the husband's family any posthumous children born to the widow,[58] and they held that, while a widow is free to do as she wishes, if she leaves her husband's family, she renders her guardian liable to restore portion of the bridewealth.
According to customary law, marriage is, of course, potentially polygynous, and it may happen that the husband of a customary union marries another woman by civil or Christian rites. Conversely, the spouse of a civil marriage may take another partner according to customary rites. The validity and effect of these subsequent unions have depended on the extent to which customary marriage is recognized. In South Africa, where customary marriage enjoys only limited recognition, a union by civil or Christian rites has always been given overriding effect.
(i) Civil/Christian marriage by the husband of a customary union
Until recently, the rule in South Africa was that a civil or Christian marriage superseded and extinguished any prior customary union(s), a legal result that could work great hardship for the ‘discarded’ wife and children. Some legislative protection was introduced by s 22(7) of the Black Administration Act, which preserved ‘the material rights of any partner’ of a subsisting customary union.[59] In other words, a discarded wife could not be deprived of any property that might have been allotted to her house before the civil marriage.[60]
The inequity of one marriage automatically terminating another was finally remedied by Act 3 of 1988.[61] Section 1 provides that, although partners to a customary union may remarry one another by civil rites, a spouse may not contract a valid civil or Christian marriage with a third person (including a polygynous wife). Because this amendment was not retroactive, the discarded spouses of customary marriages dissolved prior to 2 December 1988 continue to receive the protection of s 22(7) of the Black Administration Act.[62]
(ii) Civil/Christian marriage by the spouses of a customary union
Where spouses to a customary marriage decide to celebrate their union anew under civil rites, the first union is extinguished and the parties' status is thereafter determined by common law.[63]
(iii) Customary marriage by the spouse of a civil/Christian marriage
If a party to a civil or Christian marriage purports to enter into a customary union with a person other than his or her spouse at common law, the second union is null and void. While the second (customary) union has been described as an immoral contract (because it contravenes the common law precept of monogamy), it is not bigamous, since customary marriages are not given full recognition.
Important reforms regarding civil and Christian marriage have already been accomplished by the Marriage and Matrimonial Property Law Amendment Act.[64] Certain incremental changes are now needed to introduce flexibility into the choice of law in some areas and to provide clearer guidelines in others.
The special requirements prescribed by s 22(2) and (3) of the Black Administration Act for solemnizing African civil marriages are paternalistic in intention, racist in their wording and the consequences of non-compliance serve no useful purpose. Accordingly s 22(2)-(5) should be repealed.
Courts, when making orders for the division of a matrimonial estate during divorce proceedings, should be required to take account of the parties' cultural orientation. If they were to do so, they could order return of bridewealth, subject to such rules of customary law as might be proper in the circumstances of the case.[65] The return of bridewealth on the death of one of the spouses, however, is too complex an issue to permit legislation; it must be left to the courts to deal with on a case-by-case basis.
The Law Commission has already recommended application of the common law to the devolution of estates of persons married by civil or Christian rites, with the exception of house property and land held under quitrent tenure.[66] The general application of common law in these circumstances would be a welcome improvement on the current position. The two exceptions serve no useful purpose, however, since civil/Christian marriages do not create houses and quitrent tenure may soon be phased out or superseded by other statutory tenures.
Significant reforms along the lines recommended by the Law Commission have already been effected in KwaZulu/Natal and Bophuthatswana. The Natal and KwaZulu Codes replaced the choice of law rules provided by the Black Administration Act,[67] with the result that estates of Blacks married by civil and Christian rites now devolve according to the Succession Act of 1934,[68] and Bophuthatswana too introduced the common law of intestate succession.[69]
In view of the many years of uncertainty about whether marriage operates to render the spouses majors under the common law, an express provision on this question would be welcome. Such legislative intervention would be useful in other respects, for it is still not clear whether the Age of Majority Act[70] overrides customary law and whether s 11(3) of the Black Administration Act should be read subject to that Act.[71]
When customary marriages are given full recognition, the question will arise whether a spouse who purports to marry another person by customary rites during the existence of a civil marriage, should be deemed to have committed the crime of bigamy. In a country that tolerates polygyny, there are good reasons to abolish the crime of bigamy altogether, or, if it is to be retained, at least to require the imposition of lighter sentences.[72]
[34] In this regard, s 11(3) of the Black Administration Act 38 of 1927 would be relevant.
[35] Notably, ss 21-22 and 29-30 of the Marriage Act 25 of 1961.
[36] Under s 22(4) and (5) of the Act.
[37] A wife nevertheless attained majority on marriage. Cf the Age of Majority Act 57 of 1972 and s 14 of the Natal and KwaZulu Codes.
[38] The latter was an inexpensive method of varying the matrimonial proprietary regime, although, if the spouses wished to enter into an antenuptial contract instead, they were free to do so.
[39] Marital power could be excluded only by an antenuptial contract, not by a prenuptial declaration. See s 27(3) of the Natal and KwaZulu Codes.
[40] By the Matrimonial Property Act 88.
[41] The Marriage and Matrimonial Property Law Amendment Act 3.
[42] Under s 3 of Act 3 of 1988, where the marriage is out of community of property, the accrual system may be made applicable.
[43] Namely, 2 December 1988. Section 4 of Act 3 of 1988, inserting s 25(3) into Act 88 of 1984.
[44] It follows that the wife may institute an action in her own right and that she has the locus standi necessary to do so, even if she is under her husband’s marital power.
[45] Section 3 of the Divorce Act 70 of 1979.
[46] Under s 7(1) of the divorce Act 70 of 1979, a court may not grant a decree of divorce until it is satisfied that proper provision has been made for the children, and s 6(3) of the Act provides that the child’s best interests must prevail.
[47] If the widow decides to enter into a levirate union, and if she bears more children for her deceased husband’s family, they are deemed to be illegitimate.
[48] According to common law, if a spouse was still a minor before getting married, the marriage operates as a form of emancipation, and he or she will not revert to minority status if the union is later dissolved. While early cases from the Transkei (based on a proclamation which is similar to the Age of Majority Act 57 of 1972) confirm that this rule applies in the case of African marriages too, there is no clear authority for the rest of the country.
[49] While s 23(1) of the Black Administration Act provides that house property must devolve according to customary law, because civil/Christian marriages do not create ‘houses’, they are not covered by this section. See s 79(2) of the Natal and KwaZulu Codes.
[50] Or, at some time prior to death, had been the partner of such a marriage and was not survived by the spouse of a customary marriage. See reg 2(c) of GN R200 of 1987.
[51] Section 2(1) of Act 87 of 1990 provides that ‘the survivor shall have a claim against the estate of the deceased spouse in an amount sufficient to provide him with his reasonable maintenance needs in so far as he is not able to provide therefor from his own means and earnings’.
[52] Without a clear agreement on bridewealth, however, payment cannot be demanded.
[53] Thus, under certain systems of law, a wife’s guardian will lose his right of theleka (and with it the corresponding duty of phuthuma disappears). Theleka is objectionable in the context of civil/Christian marriage because it gives the wife’s guardian a right to interfere in the marital consortium.
[54] If a husband committed adultery, customary law does not always afford the wife cause for complaint (or justification for ending the marriage). By contrast, under common law, adultery by either spouse may lead to irretrievable breakdown.
[55] For custody and guardianship are decided by common law. The courts are prepared to enforce customary law to the extent that they will allow the bridewealth holder to claim bridewealth for a daughter when she marries.
[56] And that a court granting divorce should have the power to make an order regarding return of bridewealth: Marriages and Customary Unions of Black Persons para 11.8.9.
[57] According to some systems of customary law, if the principal reason for the marriage is frustrated because the wife died while still young and capable of bearing children, her family would be expected to provide a substitute wife. If they failed to do so, the wife’s guardian would be expected to return some at least of the bridewealth. Conversely, if the husband were to die when his wife was still capable of bearing children, she would be expected to enter into a levirate union, and, if she refused to do so and returned to her own family, her guardian would be obliged to return part of the bridewealth.
[58] The husband’s heir has been allowed to claim bridewealth paid for any daughters.
[59] And note the special formalities required for a civil or Christian marriage under s 22(2) and (3) of the Black Administratioin Act.
[60] But the husband was not obliged on to continue augmenting this property, and once it had been exhausted the discarded wife would have nothing left from her previous marriage with which to support herself.
[61] Amending s 22 of the Black Administration Act.
[62] Because the social and economic position of men is relatively more favourable than that of women, s 22(7) of the Black Administrationi Act does not protect men.
[63] Minimum violence is done to the spouses’ relationship inter se, although any children born before the civil marriage was contracted are automatically legitimated in terms of the common law. The spouses’ relations with third parties are more complex, and it is still uncertain to what extent therse relationships are affected bythe second union.
[64] 3 of 1988.
[65] Whenever bridewealth is involved, the wife’s guardian will have to be joined as a party to the action, since his rights (not his ward’s) will be legally affected.
[66] Careful consideration must still be given to the question whether the additional connecting factor - the nature of the matrimonial property system - should now be dropped. Marriages and Customary Unions of Black Persons para 11.7.2.
[67] Section 79(3) of the Codes. This provision could be amended to introduce the current Intestate Succession Act 81 of 1987.
[68] No. 13.
[69] Succession Act 23 of 1982.
[70] 57 of 1972.
[71] Section 14 of the Natal and KwaZulu Codes, however, provides that the Age of Majority Act overrides s 11(3).
[72] Aarguably, the invalidity of the second union is penalty enough.
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