ConCourt shuts down antenuptial contracts after customary marriages

A CONSTITUTIONAL Court judgment on customary marriages has sparked concern among legal experts who warn that it could affect thousands of couples who entered into civil marriages after first marrying under customary law.

The case centred on a couple who concluded a customary marriage in 2011, which by law placed them in community of property. Eight years later, the couple entered into a civil marriage and signed an antenuptial contract (ANC) intended to change their marriage to out of community of property.

The applicant argued that section 10(2) of the Recognition of Customary Marriages Act was unconstitutional because it allowed spouses to change their marriage’s property system without court approval. This, the applicant said, could leave vulnerable spouses, particularly women, at risk of losing their property rights.

In its judgment, the court found that an antenuptial contract signed after a customary marriage was invalid. The court ruled that couples cannot change their matrimonial property system unless they first obtain court approval, as required under section 21 of the Matrimonial Property Act.

In his judgement, Constitutional Court Judge Steven Arnold Majiedt said if a customary marriage is out of community of property with an ANC, the civil marriage will not be in community of property. "It will be out of community of property in accordance with the ANC which regulates the parties marriage." 

Lesala Mofokeng, a senior lecturer at the University of KwaZulu-Natal's School of Law, an expert in customary law and decolonisation, outlined the potential fallout from this judgment, which could significantly affect countless families across various communities.

Mofokeng said the court decision invalidates many antenuptial contracts concluded regarding their civil marriages for couples who have previously entered into customary marriages, which by default, are marriages in community of property.

“The scary part of this judgment is that it will affect a lot of communities, and for a lot of African people who are subjects of customary law and culture, this will be disastrous,” he said.

This means that all parties who were married under customary rights.

"Under traditional African cultural and religious beliefs, many couples engage in customary marriages before proceeding to civil ceremonies.

"Where the parties intend to conclude a civil marriage, it is legally permissible to omit customary marriage rituals, such as family negotiations, lobolo agreements, and celebratory ceremonies. In practice, such marriages are often frowned upon, as they are regarded as violating custom and offending ancestral spirits," he said.

Mofokeng further observes that indigenous communities developed the practice of dual marriages during apartheid in response to Eurocentric legal regimes that failed to recognise customary marriages as valid.

"Although contemporary law now fully recognises customary marriages, the practice of dual marriages persists, and the judgment is likely to hurt all such marriages.

"This duality creates complexities, especially when viewed through the lens of South African law, which, under the current constitution, has historically sought to protect such customs, subject to the Bill of Rights," he said.

Mofokeng said, according to this new judgment, once couples enter into a customary marriage, that marriage is automatically recognised as valid, thereby negating subsequent antenuptial contracts unless the proprietary consequences that applied at the time of the customary marriage are amended through a court order.

He said this aspect of the ruling underscores a critical need for educational initiatives.

“I believe people should be educated about this, especially the traditional and community leaders,” he said, indicating that a broader understanding of these legal implications is paramount.

He said the judgment was intended to protect the weaker spouse, but warned that it could unintentionally create new legal difficulties for couples trying to understand and manage their marriage agreements.

The Women’s Legal Centre in Cape Town welcomed the decision, which safeguards women in customary marriages, who are often economically disadvantaged and historically marginalised.

"The insistence on judicial oversight reinforces the protective intent of the Recognition of Customary Marriages Act and prevents partners from using legal technicalities to disempower vulnerable spouses.

"The majority judgment, penned by Justice Steven Majiedt, reinforces the protective framework for spouses in customary marriages and affirms the necessity of judicial oversight when altering matrimonial property regimes.

According to a statement from the Women's Legal Centre, the judgment affirms that customary marriage is treated and afforded the same status and dignity as other marriages, and protects spouses, particularly women, from being denied access to housing, land and property accumulated during the marriage as a result of the matrimonial property regime owned by both parties.

"The Court emphasised that judicial oversight is essential to prevent exploitation and ensure fairness," said the Women's Legal Centre.

Durban attorney, Natalie Luck, believes the Constitutional Court got the judgment right.

"This truly is a landmark judgment on a largely litigated area of law. The very purpose of the Recognition of Customary Marriages Act is reinforced by this judgment. Customary marriages are not ambiguous or second class, the marital property regime is firmly protected and established in this Act and case law.

"A customary marriage, whether formally registered or not, is valid and binding and any subsequent civil marriage thereafter (by the same spouses) is seen as a continuation of the marriage. Any attempt to alter the marital property regime by entering into an antenuptial contract post solemnisation of the customary marriage requires the spouses to register a post nuptial contract with the high court," said Luck.

Luck said this judgment may come as a shock for spouses who have decided to register a civil marriage after their customary marriage and execute their antenuptial contract as such.

"Their contracts may be declared invalid and this would have far reaching affect for their property ownership, businesses and loans etc.," she said.

She said this ruling was in favour of women's rights, especially since in most marriages the economically vulnerable spouse is the woman.

"The Constitutional Court held a strong line that any attempt to change a matrimonial property regime requires judicial oversight. Had they ruled otherwise it would have demeaned the purpose of the legislation and the protection it affords a vulnerable spouse, most commonly women," added Luck.

She said she always stress to clients who are in negotiations with family, if they intend to be married out of community of property it is vital that the antenuptial contract is executed (signed in the presence of a Notary Public) before the customary marriage celebrations and negotiations are finalised.

"The earlier the better as in some cultures there may be uncertainty at what stage the customary marriage is deemed finalised.

"If they fail to enter into a valid antenuptial contract the effect is that their marriage is one in community of property. They cannot at a later date decide to change to a civil marriage out of community of property as this undermines the legislative recognition of customary marriages," she said.

SUNDAY TRIBUNE