Marriage ruling sparks fears of potential 'disaster'

Thousands of couples in similar unions could be affected

- TASCHICA PILLAY

A CONSTITUTIONAL Court judgment on customary marriages has sparked concern among legal experts who warn that it could affect thousands of couples who entered into civil marriages after first marrying under customary law.

The case centred on a couple who concluded a customary marriage in 2011, which by law placed them in community of property. Eight years later, the couple entered into a civil marriage and signed an antenuptial contract (ANC) intended to change their marriage to out of community of property.

The applicant argued that section 10(2) of the Recognition of Customary Marriages Act was unconstitutional because it allowed spouses to change their marriage's property system without court approval. This, the applicant said, could leave vulnerable spouses, particularly women, at risk of losing their property rights.

In its judgment, the court found that an antenuptial contract signed after a customary marriage was invalid. The court ruled that couples cannot change their matrimonial property system unless they first obtain court approval, as required under section 21 of the Matrimonial Property Act.

In his judgement, Constitutional Court Judge Steven Arnold Majiedt said if a customary marriage is out of community of property with an ANC, the civil marriage will not be in community of property. "It will be out of community of property in accordance with the ANC which regulates the parties marriage."

Lesala Mofokeng, a senior lecturer at the University of KwaZulu-Natal's School of Law, an expert in customary law and decolonisation, outlined the potential fallout from this judgment, which could significantly affect countless families across various communities.

Mofokeng said the court decision invalidates many antenuptial contracts concluded regarding their civil marriages for couples who have previously entered into customary marriages, which by default, are marriages in community of property.