EVEN THE LAW SAID, ‘LET’S SETTLE THIS ONCE & FOR ALL!’

A landmark ConCourt ruling has finally clarified property rights in customary and civil marriages.

The Constitutional Court held that antenuptial agreements made following a traditional marriage are legally binding, elucidating the legal position governing matrimonial property regimes pertaining to civil and customary marriages.

The Gauteng High Court had earlier ruled that section 10(2) of the Recognition of Customary Marriages Act was unconstitutional, and the court on Wednesday refused to uphold that ruling.

Section 10(2) did not allow a modification in the marriage property regime without judicial scrutiny, according to the majority of the ConCourt. Therefore, it decided, the issues raised by the high court were not present.

The case began as an oppositional divorce between the parties at the High Court. By custom, the applicant and the first respondent were married in a community of property marriage. After eight years, they made the decision to get married in a civil ceremony and signed an antenuptial agreement (ANC) under the Recognition Act.

According to the agreement, the civil marriage would follow the accrual method and not be subject to common property. Without sharing the joint estate established by the traditional marriage, they entered into a civil marriage in 2021.

The first responder requested a divorce decree and ANC enforcement against the petitioner a year later. In the event that the ANC was found to be legitimate, she argued that section 10(2) of the Recognition Act was illegal.

She contended that this allowed partners who were married under customary law to switch from an in-community property regime to an out-of-community property regime with a simple written agreement without the need for judicial supervision.

The petitioner stated that she was married to her husband in common property and that the alleged ANC is void and unenforceable.

She feared that assets that had been part of the joint estate in a traditional marriage would now be recognized as the sole property of the spouse whose name the assets had been registered, depriving the other spouse—typically a woman—of her right to a half-share.

The high court sustained her challenge, ruling that the postnuptial agreement reached by the parties under the contested section was illegal because there was no judicial control and that it unfairly changed the marriage property structure.

The top court ruled that the lack of judicial control amounted to unfair discrimination and that this would disadvantage customary marriage spouses, who are mainly Black women.