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.

Suretyship Agreement Validity: Initials as Signatures in South African Contract Law

 

This article discusses Billion Property Developments v Nevzomark (Pty) Ltd and Ali Ozer, an October 2024 decision.

Introduction

This case, heard in the High Court of South Africa (Gauteng Division, Pretoria), involves a dispute over a lease agreement and an associated suretyship. The plaintiff, Billion Property Developments, sued the defendants, Nevzomark (Pty) Ltd and Ali Ozer, for breach of contract and arrear rental amounting to R1,619,233.051.

Legal Issues

The main legal issues in this case revolve around:

·        The validity of a suretyship agreement when only initialled, not signed. 

·        Whether initialling qualifies as a signature under South African law. 

·        The binding nature of a suretyship agreement on a surety in their personal and representative capacities. 

·        The establishment of court jurisdiction through domicilium citandi et executandi (chosen address for service of legal documents)

Court's Discussion

The court examined several key aspects of the case:

·        Validity of the Suretyship Agreement: The defendants argued that the suretyship agreement was invalid because it was only initialled, not signed, by Ali Ozer. They contended this did not comply with Section 6 of the General Law Amendment Act, which requires suretyship contracts to be in writing and signed by the surety. 

·        Initials as Signatures: The court referred to the case of Van Niekerk v Smit and Others, which established that initials could qualify as signatures under South African law. Based on this precedent, the court determined that Ozer's initials on the suretyship agreement were sufficient to constitute a signature. 

·        Personal vs. Representative Capacity: The defendants argued that Ozer initialled the agreement in his capacity as Director of Nevzomark (Pty) Ltd, not in his personal capacity. The court cited Lategan and Another NNO v Boyles and Another, which held that a surety can be bound in both personal and representative capacities. 

·        Caveat Subscriptor Rule: The court applied the caveat subscriptor rule, which presumes that a person who signs a document is aware of its contents and agrees to be bound by them. As Ozer was named as a surety in the lease agreement and initialled both the lease and suretyship documents, he was deemed to have accepted the obligations arising from the suretyship agreement. 

·        Court Jurisdiction: The defendants challenged the court's jurisdiction over Ozer, claiming he had not assigned a domicilium citandi et executandi in the lease agreement. The court found that although the plaintiff did not explicitly plead Ali Ozer's residential address, the address provided in the lease agreement was sufficient to establish jurisdiction.

Court's Judgment

The court ruled in favour of the plaintiff, Billion Property Developments, dismissing the defendants' exceptions with costs. The key points of the judgment were:

·        The suretyship agreement was deemed valid and binding on Ozer, as his initials qualified as a signature. 

·        Ozer was bound by the suretyship agreement in both his personal and representative capacities. 

·        The court had jurisdiction over Ozer based on both the cause of action and his residential address provided in the lease agreement.

Conclusion

This case highlights the importance of understanding the legal implications of initialling documents, particularly in the context of suretyship agreements. It reinforces the principle that initials can be considered signatures under South African law, and that individuals can be bound by suretyship agreements in both personal and representative capacities. The judgment also demonstrates the court's willingness to look beyond strict formalities when establishing jurisdiction, if the essential information is provided within the relevant documents.

The case serves as a reminder to individuals and businesses to exercise caution when initialling or signing legal documents, as they may be held liable for the obligations contained therein. It also emphasizes the need for clear and comprehensive documentation in lease agreements and associated suretyships to avoid potential disputes and legal challenges.

 

 

Essential Estate Planning: Preparing Your Digital and Physical Assets for Survivors

 

Planning for your death is a crucial task that many people overlook or postpone. This article emphasises the importance of preparing for the inevitable to ensure your wishes are respected and to ease the burden on your loved ones during a difficult time.

I have posted a Wishes and Memories booklet on our website that will be a clear record of your funeral wishes, a source of important documents for legal and public records, and a permanent keepsake of your fondest memories to speak to future generations.

Last Will and Testament

A will is a legal document that outlines how you want your assets and property distributed after your death. It's a crucial component of estate planning in South Africa. The advantages of having a will:

• You decide who inherits your property and assets.
• You can specify guardians for minor children.
• You can choose an executor to manage your estate.
• It can help reduce potential conflicts among family members.
• If you die without a valid will in South Africa, your estate will be distributed according to the Intestate Succession Act 81 of 1987. This Act prescribes how your assets should be divided among your surviving spouse, children, parents, and other relatives. The distribution may not reflect your personal wishes.

Living Will

In South Africa, a living will serves as a guide for your family and medical professionals. The advantages of having a living will:

• It outlines your wishes for medical treatment if you become incapacitated and unable to communicate.
• It reduces the burden on family members who might otherwise have to make difficult decisions.
• It can prevent family conflicts over your medical treatment.
• While not legally binding, it can inform medical professionals of your preferences regarding life-sustaining procedures.

Managing Digital and Physical Assets in South Africa

Physical Assets

To help your survivors manage your physical assets in South Africa create a box file (and inform a trusted person where to find it) containing:

• Important documents such as your will, living will, marriage certificate, insurance policies, title deeds, insurance policies, vehicle papers, timeshare information, etc.
• List of creditors (credit cards, loans, mortgages, store accounts)
• List of important contacts (broker, lawyer, doctor, financial advisor)
• List of family and friends to contact upon your death
• Information about subscriptions and services (e.g., TV, security, insurance)
• Security codes and keys for safes, post office boxes, etc.
• Funeral wishes and burial/cremation preferences
• Instructions for handling subscriptions and services like DStv and home security.

Digital Assets

Digital assets are often overlooked but are increasingly important:

• List all your virtual accounts, usernames, and passwords, including email, social media, and online shopping accounts.
• Create a digital estate plan, either in your will or a separate document, instructing your executors on how to handle your online presence and whether to keep your social media sites current or delete them. You may, for example, want your executors to notify your friends or connections of your passing, and to keep the sites open, as a memorial. If you decide to memorialize your accounts, X (Twitter) and Facebook will shut down your account, but your executors can set the privacy so that only confirmed family and friends can see the profile and leave posts on the profile Wall, in remembrance. You should nominate someone who is technically savvy to manage the digital side of your estate.
• See this excellent article on Why you need a digital estate plan and how to create one.

Additional Considerations

• Regularly update your beneficiaries on retirement accounts, life insurance policies, and other financial products.
• Review and update your estate plan regularly, especially after major life events like marriage, divorce, or the birth of children.
• Consider the potential for inheritance disputes, and structure your estate plan accordingly.
• If you have a complex family situation or a large estate, consider consulting with an estate planning attorney for more comprehensive guidance.
• Set reminders: Schedule regular reviews of your estate plan to keep it up to date.

Conclusion

While planning for your death may seem morbid or unnecessary, it's one of the most considerate things you can do for your loved ones. By taking the time to organize your affairs, create necessary legal documents, and communicate your wishes, you can significantly reduce the stress and potential conflicts that often arise after someone's passing.  Remember, the goal isn't to create a perfect estate plan but to have at least the bare minimum in place. Even basic preparations can make a world of difference to those you leave behind. Start with writing a will to avoid intestate succession, creating a living will, organizing your important documents, and informing your loved ones about where to find this information. Then, as time allows, you can refine and expand your plan to ensure all aspects of your estate are properly managed according to South African law.