Written by DIONNE JACKSON

25 APRIL 2023.

Customary marriages are an integral part of many cultures and societies in South Africa, encompassing unique traditions, rituals and beliefs that vary across different regions. Even though legally recognised, customary marriages are typically based on customs and practices rather than formal legal frameworks.

While customary marriages hold great cultural significance and are deeply rooted in tradition, they often present challenges when it comes to applying the law of succession due to the clash between customary practices and statutory laws. This discord can pose significant difficulties when determining inheritance rights, the division of assets, and the recognition of spouses and children under the law.

What is The Law of Succession?

The law of succession, also known as inheritance or estate law, refers to the legal rules and principles governing the transfer of a person’s estate upon their death, including property, assets, and responsibilities, to their heirs, as well as addressing any debts or liabilities the deceased may have had.

It is important to note that the deceased’s estate still has to be administered in terms of legislation, such as The Administration of Deceased Estates Act 66 of 1965, The Intestate Succession Act Act 81 of 1987, and The Wills Act 7 of 1953. This article will merely provide the reader with information on practices adopted for customary succession, which have yet to be codified but are already applied in traditional communities.

What Challenges Could a Customary Marriage Wife Face with the Law of Customary Succession?

In customary marriages, wives often face various challenges and difficulties when it comes to the law of succession. These challenges stem from the disparities and conflicts between customary practices and formal legal frameworks. Here are some of the predicaments that customary wives may encounter:

  • A lack of Legal Recognition – When a husband enters a polygamous marriage, electing to marry a second wife before obtaining the first wife’s consent, the second marriage can be deemed null and void. As a consequence of the second marriage not being recognised in law, the second wife will automatically be excluded from the protection and rights provided by formal legal systems, particularly the rights automatically afforded to her by way of being married in community of property.
  • Inheritance Disputes: Customary marriages often involve complex family structures and extended kinship networks. In the event of a husband’s death, disputes may arise over the distribution of assets and property amongst the deceased’s wife, children, and other family members. These disputes can be exacerbated when the customary practices and beliefs regarding inheritance differ from statutory laws.
  • Lack of Documentation: Section 4(9) of the Recognition of Customary Marriages Act 120 of 1998 states that a customary marriage shall not automatically be deemed invalid where the parties fail to register it. However, failure to register the customary marriage leaves the spouses in a difficult position to prove that the marriage has, in fact, lawfully taken place, which draws the spouses’ legal status into question. This can hinder the wife’s ability to assert her rights and may require her to navigate complex legal processes to establish her entitlements.
  • Cultural Bias and Discrimination: The law of succession may reflect cultural biases and discriminatory practices that disadvantage wives in customary marriages. Gender-based stereotypes, patriarchal norms, and unequal power dynamics can influence the distribution of assets and property, leading to an unfair and inequitable outcome for wives. Mainly because the law of succession in customary law follows the right of primogeniture, i.e. the eldest son mostly inherits the estate.

How Does Customary Succession Work in a Monogamous Household?

In a monogamous household, customary succession refers to the traditional rules or practices followed for the inheritance or transfer of property, rights, or leadership within the family, where the head of the household has only one spouse. It should be stressed once more that although the routes explored in this article may be adopted by certain traditional communities, all deceased estates must still be reported to the Master of the High Court. These estates do not follow statutory provisions but rather customary law regulations, which are as follows:

  • Primogeniture – Primogeniture is a common principle in customary succession, where the eldest child inherits the majority or entirety of the family’s wealth, property, or leadership position. This practice ensures a clear line of succession and continuity within the family.
  • Gender-Based Succession: In some cultures, gender plays a significant role in customary succession. For instance, property or leadership positions may pass exclusively through the male line, excluding females from inheritance or succession rights.
  • Adoption and Marital Considerations: Customary succession may also account for adopted children or individuals who marry into the family. Often, family members may adopt children from either deceased family members, or a barren woman may adopt children in the family to raise. In these cases, adopted children may be treated as biological heirs and included in the inheritance process. Similarly, spouses may be granted certain rights or shares of the family’s property or wealth.

How Does Customary Succession Work in a Polygynous Household?

In a polygynous household where one husband has multiple wives, customary succession can be more complex due to the presence of multiple spouses and their children. In all instances, though, the eldest son from each household succeeds his father in that particular house; should he be deceased, his descendants are considered; should they be non-existent, his younger brothers and their descendants will be considered.

There are also other considerations that may be explored in a polygynous household, such as:

  • Negotiation and Customary Agreements – Polygynous households may have customary agreements or arrangements regarding inheritance and succession. These agreements might be established at the time of marriage or throughout the course of the marriage, aiming to provide clarity and fairness in the distribution of property and wealth.
  • The Role of the Husband – In a polygynous household, the husband typically holds the primary authority and leadership position. He may have the final say in matters related to inheritance and succession within the family;
  • Primogeniture and Birth Order – Similar to monogamous households, primogeniture (the inheritance by the eldest child) can be a factor in polygynous households as well. The eldest child of each wife may have a higher chance of inheriting specific rights, properties, or leadership positions;
  • The Main Household (indlunkulu): This household is usually where the first wife resides and is usually the general successor.

Do I Qualify to Claim from My Partner’s Estate in Terms of Customary Succession?

The husband in a polygynous marriage may elect to divide his assets equally between his respective wives. The most vital component to consider when a husband dies without stipulating his wishes in a will, is whether the customary marriage is, in fact, legally recognised.

How do I know whether my customary marriage is legal?

In considering whether the customary marriage is valid and enforceable, section 3(1) of the Customary Marriages Act 120 of 1998 dictates that the following must be present:

  1. both parties must be above the age of 18;
  2. both parties must consent to be married in terms of customary marriage; and
  3. the marriage must be negotiated and celebrated in terms of customary law, such as:
    • lobola must be negotiated, fixed, and paid; and/or
    • the bride must be handed over to the groom’s family in celebration.

Without necessarily being codified, there are other aspects which may influence whether the customary marriage is considered legal or not, for example:

  • If the first wife’s consent is not obtained prior to the second marriage, the second marriage may be declared null and void. The first wife will be allowed to dispute the existence of the marriage and such, and also dispute the succession of any assets of the estate to the second wife.
  • If the husband’s family disputes any of the requirements being fulfilled, i.e. the handover of the bride to the groom’s family in celebration, the estate may be succeeded to the husband’s family in totality, without consideration of the wife.

Are you feeling lost after losing a customary spouse? Uncertainty in a time of grief is a thing of the past, with Burger Huyser Attorneys by your side. Contact our customary law experts and specialist team of family lawyers for more information on how we can assist you in dealing with customary succession.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE