Proprietary Consequences of a Customary Marriage
Marriages in community of property
In terms of section 7(2) of the Act, read with the case of Gumede v President of the Republic of South Africa CCT 50/08 [2008] ZACC 23, a customary marriage entered into before or after the coming into operation of the Recognition of Customary Marriages Act 120 of 1998 (the “Act”), in which a spouse is not a partner in any other existing customary marriage (monogamous customary marriage), is a marriage in community of property and of profit and loss. Chapter III and sections 18, 19, 20 and 24 of Chapter IV of the Matrimonial Property Act, 1984 (Act No. 88 of 1984) apply in respect of these marriages.
Marriages out of community of property
A customary marriage in which a spouse is not a partner in any other existing customary marriage, may have the proprietary consequences of a marriage out of community of property. This will be the case where spouses elected to enter into an ante nuptial contract prior to the conclusion of the marriage (see section 7(2) of the Act).
Change of Patrimonial System of a Customary Marriage entered into Before 15 November 2000 (Date of Commencement of the Act)
Section 7(4) allows for spouses in an existing customary marriage entered into before the commencement of the Act to apply to court to change their matrimonial property system.
The relevant subsection reads as follows:
“(4)(a) Spouses in a customary marriage entered into before the commencement of this Act may apply to a court jointly for leave to change the matrimonial property system which applies to their marriage or marriages and the court may, if satisfied that
(i) there are sound reasons for the proposed change;
(ii) sufficient written notice of the proposed change has been given to all creditors of the spouses for amounts exceeding R500 or such amount as may be determined by the Minister of Justice by notice in the Gazette; and
(iii) no other person will be prejudiced by the proposed change,
Order that the matrimonial property system applicable to such marriage or marriages will no longer apply and authorize the parties to such marriage or marriages to enter into a written contract in terms of which the future matrimonial property system of their marriage or marriages will be regulated on conditions determined by the court.
(b) In the case of a husband who is a spouse in more than one customary marriage, all persons having a sufficient interest in the matter, and in particular the applicant’s existing spouse or spouses, must be joined in the proceedings.”
Change of Patrimonial Property System of Customary Marriages entered into After 15 November 2000
Section 7(5) of the Act provides that section 21 of the Matrimonial Property Act, 88 of 1984, is applicable to a customary marriage entered into after the commencement of the Act, provided the husband does not have more than one spouse, i.e. a monogamous customary marriage, entered into after 15 November 2000.
A High Court order will have to be made to change the matrimonial property system, and for the recordable of the agreement governing the marriage in the deeds registry concerned.
Change of Marriage System
As already alluded to, it often occurs that spouses to a valid customary marriage conclude a civil marriage subsequent to the conclusion of the customary marriage. Section 10 of the Act provides for such civil marriage, however, it is interesting to note that the Act does not provide for the conversion of a civil marriage into a customary marriage.
Section 10 provides as follows in this regard:
“(1) A man and a woman between whom a customary marriage subsists are competent to contract a marriage with each other under the Marriage Act, 1961 (Act 25 of 1961), if neither of them is a spouse in a subsisting customary marriage with any other person.
(2) When a marriage is concluded as contemplated in subsection (1) the marriage is in community of property and of profit and loss unless such consequences are specifically excluded in an ante nuptial contract which regulates the matrimonial property system of their marriage.
(3) Chapter III and sections 18, 19, 20 and 24 of Chapter IV of the Matrimonial Property Act, 1984 (Act 88 of 1984), apply in respect of any marriage which is in community of property as contemplated in subsection (2).
(4) Despite subsection (1), no spouse of a marriage entered into under the Marriage Act, 1961, is, during the subsistence of such marriage, competent to enter into any other marriage.”
From the above section it is abundantly clear that the monogamous customary marriage which is “converted” into a civil marriage and governed by the Marriage Act will be a marriage in community of property, unless the spouses had entered into an ante nuptial contract prior to their customary marriage if such marriage was concluded after 15 November 2000, or if they had changed their matrimonial property regime as provided for in section 7(4), where the marriage was concluded prior to 15 November 2000.
Conclusion
Where parties have entered into a monogamous customary marriage, before or after 15 November 2000, without registering an ante nuptial contract and thereafter enter into a civil marriage governed by the Marriage Act, the civil marriage remains one of in community of property. The spouses cannot, prior to the “conclusion” of the civil marriage, enter into an ante nuptial agreement to exclude the community of property, etc. If the spouses do require their marriage to be out of community of property, the provisions of section 21 and 22 of the Matrimonial Property Act, 1984 must be adhered to.
Notaries are warned not to attest an ante nuptial agreement before confirming from the “spouses” whether they have not already concluded a customary marriage and are merely applying the provisions of the said section 10. Should notaries refrain from determining this fact, an invalid ante nuptial agreement would be registered and spouses be brought under a misrepresentation as to their matrimonial property regime.
