Antenuptial Contracts
In various decided cases, our Courts have pronounced some interesting legal principles with regards to customary marriages, which are binding in South Africa. It was decided in the case of Mbungela And Another v Mkabi And Others (820/2018) [2019] ZASCA 134 that lobola does not necessarily require to have been paid in full in order for a customary marriage to be valid, as long as other requirements were complied with. The same case (Mbungela) and the case of Tsambo v Sengadi (SCA) (unreported case no 244/19, 30-4-2020) it was also upheld that the handing over of the bride is not indispensable.
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There are a number of reasons why couples may opt to remain unmarried despite undertaking reciprocal obligations towards each other that are similar to those in marriage relationships. The reasons are various, from estate planning, career considerations, religious reasons, family relations to the lure of independence as an individual.
Growing up in our infant years, we used to play ‘imaginary family house.’ This was a game whereby we would find a suitable place in the backyard and divide roles amongst ourselves and our friends. One would be chosen to act as the father, another as the mother, and others as the children. Of course, sometimes there would be disputes between two boys who both would want to act as the father especially if the girl he liked was chosen as the mother for that particular day.
Further to the usual partying of the festive season, it is also a time where many couples schedule weddings to celebrate tying the knot. The huge pressure and strain that comes with organising and putting together a wedding more often leaves some little but important details unattended to. Unfortunately for some, the importance of these minor details only becomes manifest when the spouses are already in their new home.
With bliss, anticipation and love abound, it is almost uncomfortable for a couple that is about to get married to discuss the possible dynamics around which the marriage may likely end. It is indeed an uncomfortable discussion, but one that is necessary and in best interest if looked at from the right perspective. We all wish for good things, but good things sometimes do not last.
South African matrimonial property regulation recognises three distinct regimes being the marriage in Community of Property, Out of Community of Property with the Accrual system and the Out of Community of Property without the Accrual system.
After the reading of a Will, it's often not surprising when there are often issues that arise. Not only because the Will is not clear, but family members often feel that they were not looked after and one got more than the other etc.
Such disputes sometimes end up in Court, where members challenge the Will or its validity at all costs, hoping that should the estate be administered and distributed according to the rules of Intestate Succession, they stand to gain more.
Besides certainty antenuptial contracts bring legal effect to matrimonial property regimes and this is crucial with regards to entering contracts, as well as in the event of divorce, maintenance and devolution of deceased estates.
Many couples have the dream of getting married abroad in an exotic destination, but there are certain pitfalls that can come from doing this.
South African marital laws presume that a woman’s home is with her husband’s home and when they get married, the woman is legally bound by the laws of the country he treats as his home.
Before registering an antenuptial contract, the agreement needs to be notarised by a practicing notary attorney who has no personal relation to either one of the spouses.
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