Love, law, and land: ConCourt sets the record straight on marriage property rights

In a significant ruling, the Constitutional Court has clarified the legal framework governing matrimonial property regimes in the context of customary and civil marriages. The court determined that antenuptial contracts (ANCs) entered into after a customary marriage hold legal validity.

On Wednesday, the court also declined to uphold a previous order of constitutional invalidity issued by the Gauteng High Court, which had declared section 10(2) of the Recognition of Customary Marriages Act unconstitutional.

The majority of the ConCourt held that section 10(2) did not permit a change in matrimonial property regime without judicial oversight. It ruled that therefore, the concerns identified by the high court did not arise.

The matter started out in the High Court as an opposed divorce between the parties. The applicant and the first respondent were married to each other in community of property by way of customary. Eight years later, they decided to conclude a civil marriage and signed an antenuptial contract (ANC) in terms of the Recognition Act.

That contract provided that the civil marriage would be out of community of property and subject to the accrual system. They concluded the civil marriage in 2021, without dividing the joint estate created by the customary marriage.

A year later, the first respondent sought a decree of divorce and enforcement of the ANC against the applicant. She pleaded that the ANC was invalid, or in the alternative, if the ANC was held to be valid, then section 10(2) of the Recognition Act was unconstitutional.

This, she argued, permitted spouses married under customary law to change their matrimonial property regime from in community of property to out of community of property by a mere written agreement and without judicial oversight.

It was argued on behalf of the applicant that the purported ANC is invalid and unenforceable and that she was married to her husband in community of property.

Her concerns were that assets which had formed part of the joint estate under the customary marriage were being recognised as the sole property of the spouse under whose name the assets had been registered, and the other spouse - usually the woman - would no longer have a claim to a half-share of those assets.

The high court upheld her challenge, holding that the agreement between the parties concluded under the impugned provision was a postnuptial contract that improperly altered the matrimonial property system and was invalid due to the absence of judicial oversight.

According to the high court, this would prejudice customary marriage spouses, primarily black women, and the absence of judicial oversight constituted unfair discrimination.

The majority judgment of the ConCourt, meanwhile, declined to confirm the high court’s order of constitutional invalidity. It emphasised the transformative purpose of the Recognition Act, enacted to remedy the historical non-recognition and marginalisation of customary marriages and to place them on equal footing with civil marriages.

On the question of what happens to the customary marriage when the parties enter into a civil marriage, the court held that the customary marriage is not dissolved.

It concluded that the later civil marriage subsumes the customary marriage. It stressed that where spouses wish to change their matrimonial property regime, at any stage, the law provides a clear mechanism for this with safeguards for creditors and vulnerable spouses.

The minority judgment took the view that it would be inconsistent with the purposes of the Act to regard the customary marriage as dissolved by the civil marriage. It found the majority judgment to be unclear as to the effect of the civil marriage on the customary marriage.

Get your news on the go, click here to join the Cape Argus News WhatsApp channel.

Cape Argus