Legal Articles

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.

The vital point to learn from the cases above is that the performance of some customary rites in anticipation of the “wedding” may actually result in legal implications that might not have been intended, which will be an inconvenience as much as it will be disappointing. Time and again we advise our valued clients that before they organise and take part in any customary marriage rites, it is best to consult with a legal practitioner so as to understand the attendant legal implications. In this article we discuss reasons why it is important to execute an antenuptial contract before ANY customary marriage rites are performed, for those that prefer marriages out of community of property.

In the cases cited above, for example, let us say the parties had executed an antenuptial contract after the lobola down payment (deposit) or while waiting for the handover of the bride to be done, it would mean the antenuptial contract would have been executed invalidly. This is because the Courts pronounced that the parties were in fact married, despite efforts by other parties to request the Courts to declare that there is no valid marriage. This effectively means that they should have executed a postnuptial contract as per the procedure provided under section 21 (1) of the Matrimonial Property Act 88 of 1984, and not an antenuptial agreement. The difference between the two is fundamental, an antenuptial contract is executed before the conclusion of the marriage and no leave of the Court is required whereas once a valid marriage has been concluded, spouses who wish to alter their matrimonial property system can only do so upon leave of the High Court. Spouses would need to convince the Court that, inter alia, no other party will be prejudiced by the alteration from In-Community of Property to Out-of Community of Property. Due to it being cost efficient, we urge parties to execute antenuptial contracts before arranging and taking part in any customary marriage rites, no matter how insignificant they may seem.

By default, customary marriages are In-Community of Property and where it is found that parties executed an antenuptial contract after the conclusion of the marriage without the leave of the Court, it will most likely result in the parties being declared married in community of property, which was never the intention in the first place.

In instances where it is found that the spouses executed an antenuptial contract after the conclusion of the marriage without leave of the Court, the consequences are less if the couple are still together and in love with each other because they have an option of making an application to Court to alter their matrimonial property system. Imagine a situation where, on the verge of divorce or during the administration of a deceased estate, it is found that the antenuptial contract is invalid as no leave of the Court was granted prior, resulting in the spouses being declared married in community of property, it changes the dynamics especially with regard to the estates of the individual spouses.

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