The issues before the Constitutional Court arose from an opposed divorce action between monogamous spouses married in terms of customary law who subsequently concluded a civil marriage to each other. The main point of dispute was whether the ANC concluded after the customary marriage but before the civil marriage, validly changed their matrimonial property regime from in community of property to out of community of property with application of the accrual system.
The Applicant contended that should the ANC be declared valid, section 10(2) of the Recognition Act was unconstitutional as it arbitrarily deprived a spouse of marital property. The Applicant successfully convinced the High Court that the ANC was invalid and that her marriage was indeed in community of property and now sought the confirmation of the Constitutional Court that section 10(2) of the Recognition Act was invalid.
Whilst not an aspect in dispute before the High Court or Constitutional Court, it is worth considering when a customary marriage has been concluded in the legal sense. Section 3(1)(b) of the Recognition Act provides that the marriage must be negotiated and entered OR celebrated in accordance with customary law. The parties in the present matter had not raised an issue with the validity of the customary marriage, and we may then accept that this was properly concluded before the execution of the ANC.
The majority decision of the Constitutional Court placed great emphasis on the historical marginalisation of customary law and, by virtue thereof, the prejudice to equality, dignity and protection for women. The Court used this as a backdrop when considering whether section 10(2) of the Recognition Act arbitrarily allowed spouses to change their matrimonial system after the conclusion of a customary marriage, without following the recourse provided by section 21 of the Matrimonial Property Act 88 of 1984 .
The Court held that it did not, while the Constitutional Court confirmed the invalidity of the ANC in the present case. The mere fact that the ANC was declared invalid nullified the question of unconstitutionality.
This judgment has the following immediate practical implications:
1. It robustly reaffirms that customary marriages enjoy the same constitutional status and protection as civil marriages.
2. An ANC signed after a customary marriage has been concluded, but before a civil marriage, will not change the matrimonial property unless the strict requirements of section 21 of the Matrimonial Property Act are followed.
3. Legal practitioners must advise clients in existing or contemplating a customary marriage of the legal requirements surrounding the registration of a valid ANC within the legislative time frames.
The Constitutional Court has spoken: customary marriages are equal, protected, and respected under the law. Spouses cannot bypass legal safeguards, and property rights remain secure. This ruling brings much-needed clarity and confidence for all South African marriages.
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