JOHANNESBURG - The Constitutional Court has ruled that signing an antenuptial contract after the conclusion of a customary marriage is invalid.
The judgment follows a High Court ruling that declared a section of the Recognition of Customary Marriages Act unconstitutional.
Background
Customary marriages are automatically in community of property.
According to Thabo Mantyi of Thabo Mantyi Attorneys, Section 10(2) of the Recognition of Customary Marriages Act allows couples married under customary law to also register a civil marriage under the Marriage Act.
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The section further allows couples to enter into an antenuptial contract.
"This results in a couple being married under two marriage regimes,” Mantyi explains. "You can’t have the two co-existing."
He says this is why the Constitutional Court ruled that it is invalid to enter into an antenuptial contract once a couple is already married in community of property.
Changing a marriage regime
"If you want to change your marriage regime, you must make an application to the High Court," says Mantyi.
The joint application must explain why the couple wants to change their marriage regime, and it may or may not be approved.
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"The court will primarily look at whether there is any prejudice to creditors," he says.
In marriages in community of property, debt applications are considered joint applications.
"Where will that leave the creditors?" Mantyi asks.
The court will apply judicial supervision to ensure that no third parties are adversely affected by the change.
Who does it affect?
"Unfortunately, about 99 percent of Black marriages will be affected by this judgment," Mantyi says.
He explains that many Black couples approach notaries after concluding a customary marriage, intending to register a civil marriage and sign an antenuptial contract at Home Affairs.
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"But you are already married," he says.
This means couples must apply to the High Court if they want to change their marriage regime.
Because it is a joint application, both parties must agree, ensuring that no party is prejudiced.
Divorce or deceased estates
In the event of a divorce, Mantyi says the courts will simply disregard the antenuptial contract.
"If the heirs of a deceased person challenge the validity of the marriage, that is where there will be a problem," he adds.
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What couples should do
Mantyi advises couples to consult a notary public as early as possible.
"As soon as letters are sent to future in-laws requesting a meeting date, couples should see a notary public immediately," he says.
"If they wait until after lobola negotiations are concluded, it may be too late."