South African Customary Marriage: Civil Union and Antenuptial Contracts

 

Civil Marriage After Customary Marriage - spouses cannot enter into an ANC for a civil marriage if it wasn't executed and registered before their customary marriage.

Introduction:

In South Africa, the interplay between customary marriages, civil marriages, and antenuptial contracts (ANCs) is complex and nuanced. This article explores whether couples married under customary law can later enter into a civil marriage and, if so, whether they can conclude an antenuptial contract before their civil marriage. We'll also examine the implications of the unreported case of JRM v VVC on this matter.

Customary Marriage and Subsequent Civil Marriage

Legal Framework

• The Recognition of Customary Marriages Act (RCMA) allows couples in a monogamous customary marriage to conclude a civil marriage with each other.
• This is permitted only if neither spouse is married to anyone else.

Property Regime

• If no antenuptial contract was signed before the customary marriage, it is automatically in community of property.
• The property regime of the customary marriage carries over to the subsequent civil marriage.

Antenuptial Contracts (ANCs)

For Customary Marriages

• Couples can have an ANC for their customary marriage.
• The ANC must be concluded before the customary marriage takes place.
• If no ANC is signed before the customary marriage, it defaults to in community of property.

For Subsequent Civil Marriages

• Couples cannot conclude a new ANC for their civil marriage if they're already married under customary law.
• The matrimonial property system from the customary marriage applies to the civil marriage.

The JRM v VVC Case

Background

• The couple concluded a customary marriage on August 5, 2011, without an ANC.
• They signed a purported 'antenuptial contract' on February 19, 2019.
• They married in a civil ceremony on June 10, 2021.

Court's Decision

• The court had to determine if the ANC signed after the customary marriage but before the civil marriage was valid.
• The ruling established that spouses cannot enter an ANC for a civil marriage if it wasn't executed and registered before their customary marriage.

Legal Principles and Implications

Antenuptial Contracts

• An ANC must be concluded before any form of marriage.
• Once married, parties are no longer "intended spouses" but legal spouses.

Deeds Registries Act

• Section 87: ANCs must be attested by a notary and registered within three months of execution.
• Section 88: Postnuptial execution of an ANC is possible only with court authorization and if terms were agreed upon before marriage.

Postnuptial Contracts

• Any contract entered after marriage is a postnuptial contract, not an ANC.
• Postnuptial contracts require judicial intervention to be valid.

Changing Matrimonial Property Regime

• Couples wishing to change their property regime after marriage must follow sections 21 and 22 of the Matrimonial Property Act, 1984.
• This involves applying to the court for permission to change their matrimonial property system.

Conclusion:

While South African law allows couples to conclude a civil marriage after a customary marriage, it significantly restricts their ability to alter their matrimonial property regime. The JRM v VVC case emphasizes that couples cannot conclude a new antenuptial contract for their civil marriage if they're already married under customary law. This underscores the importance of careful planning and legal advice before entering into any form of marriage in South Africa. Couples should consider their long-term plans and desired property regime before their initial marriage, as opportunities to change this later are limited and require court intervention.