The Constitutional Court has ruled that couples married in customary law are married in community of property and cannot enter into a antenuptial contract at a later stage.
The court ruled yesterday that any kind of contract entered into after the customary marriage is null and void. According to the court, if a couple is already married under customary law, they cannot later change their property system simply by signing an antenuptial contract, even if they subsequently enter into a civil marriage.
This became clear after the Constitutional Court ruled yesterday that any kind of marriage contract entered into after lobola has been paid is null and void.
The judgment stems from a high court ruling involving JRM and VVC, who had entered into a customary marriage in 2011 but decided in 2019 to have a civil marriage.
Their civil marriage antenuptial contract was that the marriage was out of community of property and subject to the accrual system.
When they divorced in 2022, JRM wanted the antenuptial contract to be enforced. However, VVC said that if the contract they entered into after their customary marriage was found to be valid, section 10(2) of the Recognition Act would be unconstitutional.
The Constitutional Court has made it clear that customary marriages are not second-class marriages. Their property consequences cannot be altered casually or privately.
— Wits law lecturer Shadi Maganoe
According to VVV, the unconstitutionality of the Act was based on the fact that it permitted spouses married under customary law to change their matrimonial property regime from community of property to out of community of property by a written agreement and without judicial oversight.
The high court ruled at the time that the agreement signed by the two parties after the customary marriage could not constitute a valid antenuptial contract.
It also stated that section 10 (2) of the Recognition Act was unconstitutional because it allowed spouses in customary marriages to change their matrimonial property regime without judicial oversight, permitting arbitrary deprivation of property and unfair discrimination, particularly against women married under customary law.
After the section was declared unconstitutional by the high court, it was referred to the Constitutional Court for confirmation, which also confirmed that the antenuptial contract in JRM and VVC was invalid.
Shadi Maganoe, a lecturer at the Wits school of law, said the judgment clarified an issue that has caused widespread confusion, namely how property is regulated when spouses who married under customary law later entered into a civil marriage or attempted to change their matrimonial property system.
She said the court rejected the idea that spouses can privately agree to change their property regime without judicial supervision. In simple terms, she said, the ruling has clarified that customary marriages carry full and binding property consequences, and these consequences cannot be changed informally.
“The Constitutional Court has made it clear that customary marriages are not second-class marriages. Their property consequences cannot be altered casually or privately. Any change must comply with sections 7(4), 7(5) and 21 of the Matrimonial Property Act, ensuring fairness, transparency and constitutional protection,” she said.
Nthabiseng Dubazana of Dubazana Attorney agreed, saying the judgment means that “anything that you have done in relation to a civil wedding after lobola was paid is now officially null and void.
“It means that going forward you cannot enter into a civil marriage after paying lobola,” she said.
“I believe it is a good thing because there was a lot of confusion and lack of clarity on when the customary marriage starts and ends. A lot of people took it as if when lobola is paid it only means they’re engaged, and it’s not the case — you are married."
Dubazana said that couples should see a lawyer before getting married so that they take decisions that will protect themselves and their partners.
She said those who signed prenups after lobola will have to go back to court and start their marriage afresh.
Dr Musa Xulu, a cultural expert, said the court had taken the principle of equality into account.
“You can’t have one type of marriage being treated as better than another,” he said.
“The ruling has freed a lot of women and ensured that wives have equal rights and there is no longer the discrimination there was in the past, where customary marriage was treated as secondary,” he said.
Sowetan
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