Customary Marriage – Changing the Default Matrimonial Property System | Legal Articles

 

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Customary Marriage – Changing the Default Matrimonial Property System

Customary Marriage Act South Africa

Customary marriages in South Africa are regulated under the Recognition of Customary Marriages Act 120 of 1998 (RCMA). The RCMA provides that for a customary marriage to be deemed as legally valid and binding, the requirements provided in Section 3 must be complied with.

customary marriage in South Africa

Requirements for a Valid Customary Marriage in Terms of Section 3(1)

These requirements are that the parties:

  • Must be 18 years and above
  • They must provide their consent to the marriage
  • The marriage must be negotiated, concluded, and celebrated according to customary law

In simpler terms, the marriage rites, and traditions of the particular culture among indigenous South Africans must be adhered to.

Adapting to changing times and customs, the Courts have a duty to develop customary law as it decides on cases.

Further, the marriage must be registered with the Department of Home Affairs (DHA) within three months of concluding the marriage as per Section 4 of the RCMA.

Unregistered Customary Marriage

However, the Act provides that non-registration will not invalidate the customary marriage if all other requirements have been met.

It is thought that this was technically due to a policy and practical consideration in that most people in customary marriages are in deep rural communities where not only information dissemination lags, but efforts to register the marriage at DHA are scuppered by so many logistical and financial limitations.

Customary Marriage and Property

In terms of matrimonial property and unless proven otherwise, customary marriage is deemed as marriage in community of property.

Marriage in community of property refers to spouses becoming jointly tied as co-owners in undivided and indivisible assets and liabilities accrued before, at the time of, and during the subsistence of their marriage.

The Courts confirmed and applied this view in the cases of Mazibuko vs National Director of Public Prosecutions 2009 (6) SA 479 (SCA), and De Wet vs Jurgens 1970 (3) SA 38 (A).

Due to peculiar dynamics in marriage relationships and for diverse reasons, some spouses would prefer a different matrimonial property system to govern their marriage other than in community of property.

Where parties wish to deviate from the community of property matrimonial property system, an Antenuptial Contract is executed for spouses to exclude certain assets from their joint estate, as well as the other’s liability from debts of the other.

The validity requirements of antenuptial contracts include inter alia that on top of requirements for a valid contract, it must be executed before a Notary and registered with the Deeds Office as per Sec 87 of the Deeds Registries Act 47 of 1937. Regardless, a verbal or an informal antenuptial contract that does not comply with the requirements is still applicable between the spouses, this was held in Lagesse v Lagesse 1992 (1) SA 173 (D).

For the accrual system not to apply to the Out of Community matrimonial property regime it must specifically be excluded in the same antenuptial contract, which was held by Court in Odendaal v Odendaal 2002 (1) SA 763 (W).

Van Deventer & Van Deventer Incorporated – Marriage and Matrimonial Property Attorneys South Africa

Changing the matrimonial property system governing customary marriages in possible. Our approach is comprehensive, professional, and committed in all the matters that we handle.

We will diligently assist you with a matter such as this and a host of other legal matters. Contact us for a one-on-one consultation.

 

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