Why an antenuptial agreement may be important when getting married in terms of customary law

“I am getting married this year in terms of customary law. My fiancé and I are both professional persons and want to be married out of community of property so we can each manage our own estates. How can we go about doing this?”

Today, the conclusion of a customary marriage is governed by the Recognition of Customary Marriages Act 120 of 1998 (“RCMA”) read together with the Matrimonial Property Act 88 of 1984 (“MPA”). For a customary marriage to be valid, the parties must be older than 18 years and must consent to be married under customary law. Furthermore, the marriage must be negotiated and entered into or celebrated in accordance with customary law. This means that all the rituals and traditions of concluding a marriage in terms of a specific culture among indigenous South Africans must be complied with.

If the above-mentioned requirements have been met a valid customary marriage exists and the marriage should be registered at the Department of Home Affairs within three months of concluding the marriage.

A customary marriage is by default treated as a marriage in community of property, except if the consequences of a marriage in community of property are specifically excluded by way of an antenuptial agreement between the parties. This means that parties entering into a customary marriage are allowed to conclude an antenuptial agreement, provided such complies with the requirements of the MPA and the Deeds Registries Act 47 of 1937.

For an antenuptial agreement to be valid it must therefore be signed before a notary and registered in the Deeds Office to be enforceable. The signing of the antenuptial agreement must also take place before the date of marriage. Therefore, for a customary marriage to be recognised as a marriage out of community of property, the parties must execute the antenuptial agreement before the conclusion of the customary marriage, in other words, before the parties proceed with the rituals and tradition of concluding the marriage.

If you are intending to conclude a customary marriage and wish to be married out of community of property, it is therefore important that you consult your attorney to assist you in having an antenuptial contract drawn up and signed before you proceed with the customary marriage to ensure that the consequences of your marriage will be out of community of property.

February 12, 2019

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