The interplay between polygamy, customary law, and Antenuptial Contracts is highly complex. South African law fiercely protects existing spouses when a husband intends to enter a subsequent customary marriage.
The Fundamental Rule: Civil vs. Customary
The most critical starting point is understanding that you cannot mix marriage systems. A spouse in a civil marriage cannot, during the subsistence of that marriage, enter into another marriage including a marriage under the Recognition of Customary Marriages Act.
The First Customary Marriage
When a man and a woman enter into their first customary marriage, they have two options:
- The Default: If they do nothing, the marriage is automatically In Community of Property, meaning they share a single joint estate.
- The ANC Option: They may enter into an Antenuptial Contract that specifically excludes the community of property consequences before the customary marriage is concluded
The Section 7(6) Court Process
If a husband is already in a customary marriage and wishes to take a second wife, he cannot simply execute a standard ANC with the second wife. The law mandates a strict, court-driven process under Section 7(6) of the Recognition of Customary Marriages Act.
Entering a Second Customary Marriage
Before the second customary marriage can legally take place, the husband must apply to the High Court to approve a written contract that will regulate the future matrimonial property system of all his marriages.
The High Court will:
- Terminate Existing Regimes: If the husband and his first wife were married In Community of Property, that joint estate must be dissolved and divided equitably. A second wife cannot simply step into a pre-existing joint estate.
- Approve a New Contract: The court must approve a new contract that clearly defines the property rights for the husband, the first wife, and the incoming second wife. Often, courts order that all marriages going forward will be entirely Out of Community of Property to maintain clear boundaries.
Failure to Comply
Failure to follow the section 7(6) process does not necessarily invalidate the subsequent customary marriage. However, it can create serious uncertainty concerning the matrimonial property rights of the existing spouses, the subsequent spouse and the various family groups. The Act therefore requires the proposed matrimonial property system to be considered through the court process before the further customary marriage is entered into.