The Proprietary Consequences of Customary Marriages: Challenges in the New Regime(s)?

Abstract

The law governing marriage in South Africa is in transition. There are currently two proposals to reform the proprietary consequences of marriages in South Africa, namely a Marriage Bill [B43-2023], and a South African Law Reform Commission Discussion Paper to review aspects of matrimonial property law. This article assesses the effectiveness of the proposed reform in addressing the current regulatory challenges related to the proprietary consequences of customary marriages. It argues that the piecemeal jurisprudential development of the law has not been effectively reconciled, and this must be addressed in any future reform. However, the Marriage Bill proposed by the Department of Home Affairs is not an answer. The Bill ignores customary notions of property and creates several conceptual difficulties such as potentially leaving customary law marriages without a matrimonial proprietary regime. The South African Law Reform's Discussion Paper, which reviews aspects of matrimonial property law, holds great promise because it proposes a change in the default matrimonial proprietary system and the exclusion of family property from the marital estate. The proposals must be reconciled and informed by living customary law practices to deliver the much-anticipated law reform.