Constitutional Court Rules on Customary Marriages and Property Rights

In a landmark ruling that clarifies the legal standing of customary marriages, the Constitutional Court has determined that couples married under customary law are automatically regarded as married in community of property. This means that they cannot change their property system by entering into an antenuptial contract at a later stage.

The judgement, delivered yesterday, arises from a case involving JRM and VVC. The couple entered into a customary marriage in 2011 but opted for a civil marriage in 2019, intending to establish their marriage as out of community of property through an antenuptial contract. However, when they divorced in 2022, JRM sought enforcement of this contract, only for VVC to argue its invalidity based on legal precedents.

VVC’s argument hinged on the unconstitutionality of Section 10(2) of the Recognition Act, which she claimed allowed spouses in customary marriages to alter their matrimonial property rights without judicial oversight. This provision potentially facilitated arbitrary deprivation of property and could lead to unfair discrimination, particularly against women in these marriages.

Initially, the High Court ruled that the agreement made after the customary marriage was not a valid antenuptial contract. The court found that Section 10(2) undermined the principle of equality, as it permitted changes to the marital property regime without necessary judicial approval.

The Constitutional Court confirmed this ruling, establishing that any marriage contract entered into after the payment of lobola is null and void. This critical decision emphasised that customary marriages carry full and binding property consequences that cannot be altered informally.

Shadi Maganoe, a lecturer at the Wits School of Law, hailed the judgement as a much-needed clarification for those confused about property rights regarding customary and civil marriages. “The court rejected the idea that spouses can privately agree to change their property regime without judicial supervision,” she explained.

“The Constitutional Court has made it clear that customary marriages are not second-class marriages. Their property consequences can’t be altered casually or privately. Any changes must comply with sections 7(4), 7(5), and 21 of the Matrimonial Property Act, ensuring fairness, transparency, and constitutional protection,” Maganoe added.

Nthabiseng Dubazana from Dubazana Attorneys echoed similar sentiments, asserting that this ruling means any civil arrangements made after lobola have now been officially rendered null. “I believe it is a good thing because there was a lot of confusion and lack of clarity on when the customary marriage starts and ends,” she said, emphasising that paying lobola signifies a marriage, not just engagement.

Dubazana advised couples to seek legal counsel before entering into marriage to make informed decisions that protect their rights and interests. She cautioned that those who signed contracts post-lobola would need to return to court to establish fresh marriage contracts.

Cultural expert Dr Musa Xulu pointed out the court's consideration of equality in its ruling. “You can’t have one type of marriage being treated as better than another,” he articulated. “The ruling has liberated a lot of women and ensured that wives have equal rights. There is no longer the discrimination that existed in the past, where customary marriage was treated as secondary.”

As this ruling takes effect, it may impact numerous couples navigating the complexities of marriage law in South Africa. Many may find renewed clarity in their rights and responsibilities, especially those in customary unions, thereby promoting a greater sense of equality and fairness.

This judgement marks a significant step towards harmonising the legal recognition of different marriage forms in South Africa, ensuring that all couples, regardless of marital type, are afforded the same rights and protections under the law. The implications of this ruling resonate deeply within both legal and cultural contexts, paving the way for more equitable treatment of all marriages in the future.

Follow Us on Twitter