Chapter 8 - The consequences of customary marriage Flashcards
After you have studied this lecture, you should be able to • distinguish between and explain the general, personal and patrimonial consequences of customary marriages • discuss the single and complex systems of ranking • explain the patrimonial relations between houses
What are interpersonal relationships?
relationships between the parties concerned in the marital union.
What are the general consequences of the traditional customary marriage?
- A new legal and separate unit, namely a family or house, comes into being.
- The husband and wife have a mutual obligation to live together. Some groups allow a woman to live with her eldest son once he occupies his own independent residence.
- The husband and wife have a mutual duty to allow sexual intercourse.
- The status of the man and woman changes.
What is the wife’s position under Section 6 of Act 120 of 1998?
A wife in a customary marriage has, on the basis of equality with her husband and subject to the matrimonial property system governing the marriage, full status and capacity to acquire and dispose of assets, enter into contracts, and litigate.
What is a simple ranking system?
This ranking system is found only among those Tsonga groups that have not been influenced by the Zulus. No married woman establishes a house.
What is the complex ranking system?
The household is divided into two or three sections. The first two women, whom the man marries, become the main wives of the two sections. All further wives are added to these sections as subordinate wives.
Explain what is a seed-raiser
It is the woman that a man marries in cases where the main wife is infertile, has died, or whose marriage has been dissolved. She does not establish her own house but rather forms part of the house of the woman for whom she has been substituted. Where the main wife has died or been divorced, the seed-raiser takes her place in all respects, and her position must be made public during her marriage, if not, then she establishes a house with a separate rank.
What is an ubulungu beast?
It is a female beast given to the wife by her family group at her marriage and the progeny was used as her maintenance. This beast also marked her link with her ancestral spirits when she moved into her husband’s home. The animal formed part of the house property.
What is an ingquthu beast?
It is the beast given to the mother of a girl when she is married or seduced to thank her for looking after and guarding a virgin. The beast is the personal property of the mother’s girl, however, should her marriage dissolve, the beast becomes part of the property of her house and forfeits claim to it.
Explain the control over house property according to the Recognition of Customary Marriage Act 120 of 1998.
The position of a wife in a customary marriage has changed. In terms of section 7 of the Recognition of Customary Marriage Act, she now enjoys the same status and capacity as her husband. She thus has full status and can acquire assets and dispose of them. Shae also has full contractual and litigation capacity.
What are the instances where property transfer from one house to another is allowed?
- One house has to repay a particular debt and does not have the necessary property to do so.
- The property of one house is used as marriage goods for a son from another house.
- House property may be used to marry a subordinate wife and such a wife is usually affiliated to the house that supplied the property. This custom is known as ukwethula.
How is the property from one house to another handled?
The property of one house to another creates a debt relationship between the two houses, and sooner or later the debt must be repaid. The death of the family head does not extinguish the debt.
In which case was the dispute regarding the proprietary consequences of customary marriages entered before Act 120 of 1998 addressed?
Gumede v President of the RSA 2009 (3) SA 152 (CC)
What are the requirements for the court to grant applications to change the matrimonial property system?
- There are sound reasons for the proposed change.
- Sufficient written notice of the proposed change has bee 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
- No other person will be prejudiced by the proposed change.
