Customary marriages are governed by the Recognition of Customary Marriages Act 120 of 1998 (hereinafter referred to as “the Act”). In terms of section 3 of the Act, the prospective spouses must be above the age of 18 years, they must both consent to be married to each other under customary law and the marriage must be negotiated and entered into or celebrated in accordance with customary law.
Although Section 4 of the Act places a duty on the spouses to such a marriage to register the marriage with the Department of Home Affairs, section 4(9) of the Act specifically states that the failure to register the marriage does not affect the validity of the marriage.
A customary marriage is by default in community of property, which means that the spouses will share a single estate, sharing in both the assets and liabilities of such estate. This default position can be changed to out of community of property or out of community of property with the application of the accrual system by concluding and registering an antenuptial contract before concluding the customary marriage.
Clients often approach our firm believing that they can enter into an antenuptial contract after the conclusion of the customary marriage, but before the registration thereof. As registration with the Department of Home Affairs does not affect the validity of the marriage, this is not the case.
If you and your prospective spouse are considering entering into an antenuptial contract, the contract must be concluded and executed prior to the customary marriage being completed. Our all-inclusive cost to assist you with this process is R3250.00 inclusive of VAT.
If you and your spouse have concluded a customary marriage and have not executed an antenuptial contract prior to the conclusion thereof as set out above, you and your spouse can jointly apply to the High Court for an order that the court approve a prospective change of your matrimonial property regime in terms of Section 21(1) of the Matrimonial Property Act 88 of 1984. In order for a court to approve the change, the spouses will need to show that there is a sound reason for the proposed change, that sufficient notice has been given to all creditors and satisfy the court that no other person will be prejudiced by the proposed change. The courts have found there to be a sound reason where the spouses intended to be married out of community of property and where they have sought to maintain separate estates after the marriage, amongst other reasons. Should the court approve the change of the matrimonial property regime, the parties will execute and register a postnuptial contract.
Our professional team are available to assist you with advice on marital property regimes and the processes involved in both the conclusion of antenuptial and postnuptial contracts.