RETHABILE MOSESE | Why marriage is not just made by paper

A new Constitutional Court ruling on customary marriage answers a question circulating online that got things wrong this month: what paper can prove, and what it cannot change?

In late August, claims circulating online told South Africans that an unregistered customary marriage would become null and void once a government deadline passed.

The law says otherwise: non-registration does not, by itself, invalidate a customary marriage. A marriage does not stop existing because nobody wrote it down. Without a certificate, what becomes harder is proof: persuading a bank, a pension fund, or a court that wants paper before it will listen.

So what does the paper actually prove? Often, it proves only that a relationship was already legally complete. Banks, pension funds, officials and legal forms repeatedly teach South Africans to treat paper as the source of legal existence.

Customary marriage law does not. A Constitutional Court judgment from January spells out the consequence. Once you are married, your property is already spoken for. No later signature, however official it looks, changes that without a judge’s say-so.

The case is VVC v JRM. The couple married customarily in 2011 without an antenuptial contract, so everything either spouse owned or later acquired fell into a joint estate by operation of law. Eight years later, before a civil wedding, they signed a document calling itself an antenuptial contract.

It said the civil marriage would be out of community of property. They married civilly in 2021. When the husband filed for divorce the next year and tried to enforce that document, his wife said it was worthless.

She was right, though not for exactly the reason she advanced. An antenuptial contract must precede the marriage whose property consequences it regulates. This couple’s first marriage was in 2011. A document signed in 2019 could not privately undo the joint estate already created. That required a court order, and none was sought.

The contract therefore had no effect, and the couple remained married as they had been since 2011: in community of property.

The dissent matters because it shows the dispute was not simple. Three of the nine judges read the customary and civil marriages as capable of governing property differently, which meant the 2019 contract could still matter. They lost, six votes to three. But the split shows a real choice between two plausible accounts of how marital systems interact.

Still, neutrality between those readings is not neutral in effect. The majority asks more of the statutory text than the dissent does: the Recognition Act does not say as plainly as one might wish that a later civil marriage cannot reset property consequences already fixed by a customary marriage. Yet the dissent creates the sharper problem.

It lets a later civil ceremony do indirectly what spouses could not do directly by private contract. The majority avoids that result and stops the spouse with greater money or legal advice, often the husband in South Africa, from using a later document to escape an estate that already exists.

On a genuinely close legal question, the better reading is the one that does not make the spouse with less money or legal advice, often the wife, bear the cost of doctrinal tidiness.

That protection has a cost. Because a judge must approve the change first, a later contract cannot quietly change a couple’s property regime. The law does not fully trust married adults to rearrange their own patrimonial affairs by private agreement.

The harder question is whether law can protect unequal spouses without turning protection itself into a reason to distrust their agency. That kind of judicial control is defensible where consent is unevenly informed or pressured. But a rule that protects women partly by doubting the contracts they sign should not be waved through merely because the outcome feels fair.

Here the panic and the judgment meet: both turn on when a customary marriage becomes legally complete. The online panic was false information; the dissent was a serious legal argument that came within one vote of winning.

Yet both are pulled by the same instinct: treating a customary marriage as if it needs a certificate, signature, or civil ceremony to become fully effective. It does not. The customary marriage is the marriage. It fixes property consequences from the day it is concluded, whether Home Affairs records it or not, and regardless of what a lawyer drafts later.

This is not only about one failed contract. The Constitutional Court has confronted this hierarchy before. In Gumede and Ramuhovhi, it struck down rules that gave customary marriages worse property consequences than civil marriages received automatically.

In Sithole, it confronted a related apartheid-era property hierarchy in old civil marriages involving black spouses. Across this broader jurisprudence, black women were among those most exposed to the losses these hierarchies produced.

The VVC v JRM case belongs to that broader line because it blocks a quieter version of the same problem: using a later document, formal enough to appear authoritative, to reduce a spouse’s share years after the estate came into being.

None of this makes registration pointless. A woman without a certificate still has to fight harder to be believed, often when claiming maintenance, inheritance, pension benefits, or a share of a home. That fight costs time and dignity she should not have to spend.

But registration and property are separate questions. An unregistered marriage is not invalid. A contract signed after the marriage has already begun may be.

Anyone who married customarily and only later signed something before a civil wedding may be holding a document worth nothing, whatever it cost to draw up. Get advice now. Not because lawyers can repair a legal system too few people understand, but because advice before conflict is cheaper than discovery inside it.

Better to learn that in a consultation than across a courtroom, opposite the person they once married. By then, the paper was never going to save either of them.

• Mosese is an admitted attorney, accredited mediator and LLD candidate at the University of Pretoria.

Sowetan