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The Recognition of Customary Marriages Act (RCMA), which came into effect in November 2000, for the first time allowed customary marriages to be recognised as legally binding unions with the same status as civil unions. The Act addressed issues of equality in the marriage, and abolished the concept of marital power. In South Africa, you can now choose whether you want to get married in either a civil union or a customary marriage – the same legal rights will apply to both.

However, if you choose to enter a customary marriage, there are still some things you need to know, says Advocate Sankie Morata, Chief Operations Officer at Sanlam Personal Finance: Fiduciary Services. The most important of these is that, unless you have drawn up an antenuptial contract, all customary marriages are seen to be in community of property, which means that all assets (as well as any debt) belong to all the spouses equally.

"In the case of our wealthy businessman, because all his wives were married in community of property to the deceased, we needed everyone's consent to sell off certain farms he possessed, so you can imagine the complications arising from this and other financial arrangements which needed to completed," says Morata.

Other important considerations include:

  • It is essential to draw up a will, especially if you are in a polygamous customary marriage. You need to make sure that the people you want to leave your assets to, actually do inherit. If there is no will, an estate can sometimes take years to wind up, leaving your loved ones in financial dire straits. Remember – if you are married in community of property, your testament will only be applicable to 50% of the joint estate.
    • Proper financial planning is crucial, to ensure that your loved ones will not experience a cash shortfall upon your death. Bear in mind there may be substantial death taxes, including capital gains, estate duty and perhaps donations tax. Speak to a fiduciary specialist or qualified financial planner to assist you with an estate planning analysis, as well as with an assessment of your insurance needs to make sure your family is properly taken care of if you are no longer there.
  • Make sure you have a well-considered retirement plan in place and that you continually update your chosen beneficiaries on your pension fund’s nomination forms. Remember that the beneficiaries you nominate are not cast in stone – after your death, the pension fund trustees will have to assess all claims to your pension by dependants and will use the beneficiaries you have chosen only as a guide to how the funds should be distributed.

"As in a civil union, it is very important in a customary marriage to inform your spouse(s) of all financial decisions and contractual obligations you may have. And it goes without saying that in a polygamous marriage, all spouses should know about each other! You need to have those crucial conversations as a family, before it is too late. Everyone needs to know what they will be entitled to, and what the financial arrangements will look like for the surviving spouse(s) and your children should you die," Morata concludes.

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