In South Africa customary law marriages are governed by customary law, namely the Recognition of Customary Marriages Act and the Matrimonial Property Act.
If a couple have attended a customary marriage ceremony and met all the legal requirements, the parties will be automatically deemed to be married in community of property. The formalities are:
Parties to a customary marriage who wish to get married out of community of property must conclude an antenuptial contract before the marriage (i.e. all the requirements set out above must be met after the contract was signed and notarised). The contract must be registered at the deeds office within 3 months of execution by the Notary.
An Antenuptial Contract is not automatic proof of a customary law marriage. Customary marriages are still required to be registered at Home Affairs although non-registration does not make the customary marriage invalid. Registration of the marriage will however make it easier for a spouse to prove that they were legally married in terms of customary law, at a later date.
If parties are married in terms of customary law and later want to marry in terms of civil law, they may only do so if there is no other spouse married to either party in terms of customary law without proof of registration.
Where parties have entered into a monogamous customary marriage, before or after 15 November 2000, without registering an Antenuptial Contract and thereafter enter into a civil marriage, the civil marriage will remain in community of property. The spouses cannot, prior to the “conclusion” of the civil marriage, enter into an Antenuptial Contract to exclude the community of property. The matrimonial property system applicable to the customary law marriage will therefore continue to the civil law marriage. If the spouses do require their marriage to be out of community of property, the provisions of section 21 and 22 of the Matrimonial Property Act, 1984 must be adhered to.
If there is already another customary law spouse then they may only conclude another customary law marriage but the husband must make application to court to approve a written contract which will regulate the future matrimonial property system of his existing marriage as well as the prospective marriage.
A notary will not execute an Antenuptial Contract before receiving confirmation from both prospective spouses that they are not parties to a customary marriage and are merely applying the provisions of the said section 10. Should a party sign an Antenuptial Contract whilst still being married in terms of customary law such an agreement would be null and void and the spouses would be under a misrepresentation as to their matrimonial property regime.
VERY IMPORTANT: If you and your prospective spouse require your marriage to be out of community of property, with or without accrual, you need to enter into an Antenuptial Contract PRIOR to finalisation of your customary marriage.
Should you have any queries or require any assistance with your Antenuptial contract you can contact Ms Tshepang Mabayo at Smuts & Co Attorneys.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)