Landmark ruling clarifies property rights in customary, civil marriages

IN CLARIFYING the legal position regulating matrimonial property regimes regarding customary and civil marriages, the Constitutional Court ruled that antenuptial contracts entered into after a customary marriage are legally valid.

- ZELDA VENTER

Yesterday, the court declined to confirm an order of constitutional invalidity earlier made by the Gauteng High Court, which declared section 10 (2) of the Recognition of Customary Marriages Act unconstitutional.

The majority of the Constitutional Court held that section 10 (2) did not permit a change in matrimonial property regime without judicial oversight. It ruled that therefore, the concerns identified by the high court did not arise.

The matter started out in the high court as an opposed divorce between the parties. The applicant and the first respondent were married in community of property by way of a customary union. Eight years later, they decided to conclude a civil marriage and signed an antenuptial contract (ANC) in terms of the Recognition Act.

That contract provided that the civil marriage would be out of community of property and subject to the accrual system. They concluded the civil marriage in 2021, without dividing the joint estate created by the customary marriage.