Page:Recognition of Customary Marriages Act 1998 from Government Gazette.djvu/5

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Act No. 120, 1998

Recognition of Customary Marriages Act, 1998

(3) Chapter III and sections 18, 19, 20 and 24 of Chapter IV of the Matrimonial Property Act, 1984 (Act No. 88 of 1984), apply in respect of any customary marriage which is in community of property as contemplated in subsection (2).

(4) (a) Spouses in a customary marriage entered into before the commencement of this Act may apply to a court jointly for leave to change the matrimonial property system which applies to their marriage or marriages and the court may, if satisfied that—

(i)

there are sound reasons for the proposed change;

(ii)

sufficient written notice of the proposed change has been given to all creditors of the spouses for amounts exceeding R500 or such amount as may be determined by the Minister of Justice by notice in the Gazette; and

(iii)

no other person will be prejudiced by the proposed change,

order that the matrimonial property system applicable to such marriage or marriages will no longer apply and authorize the parties to such marriage or marriages to enter into a written contract in terms of which the future matrimonial property system of their marriage or marriages will be regulated on conditions determined by the court.

(b) In the case of a husband who is a spouse in more than one customary marriage, all persons having a sufficient interest in the matter, and in particular the applicant’s existing spouse or spouses, must be joined in the proceedings.

(5) Section 21 of the Matrimonial Property Act, 1984 (Act No. 88 of 1984) is applicable to a customary marriage entered into after the commencement of this Act in which the husband does not have more than one spouse.

(6) A husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of this Act must make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriages.

(7) When considering the application in terms of subsection 6—

(a)

the court must—

(i)

in the case of a marriage which is in community of property or which is subject to the accrual system—

(aa)

terminate the matrimonial property system which is applicable to the marriage; and

(bb)

effect a division of the matrimonial property;

(ii)

ensure an equitable distribution of the property; and

(iii)

take into account all the relevant circumstances of the family groups which would be affected if the application is granted;

(b)

the court may—

(i)

allow further amendments to the terms of the contract;

(ii)

grant the order subject to any condition it may deem just; or

(iii)

refuse the application if in its opinion the interests of any of the parties involved would not be sufficiently safeguarded by means of the proposed contract.

(8) All persons having a sufficient interest in the matter, and in particular the applicant’s existing spouse or spouses and his prospective spouse, must be joined in the proceedings instituted in terms of subsection (6).

(9) If a court grants an application contemplated in subsection (4) or (6), the registrar or clerk of the court, as the case may be, must furnish each spouse with an order of the court including a certified copy of such contract and must cause such order and a certified copy of such contract to be sent to each registrar of deeds of the area in which the court is situated.

Dissolution of customary marriages

8. (1) A customary marriage may only be dissolved by a court by a decree of divorce on the ground of the irretrievable breakdown of the marriage.

(2) A court may grant a decree of divorce on the ground of the irretrievable breakdown of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.