Customary marriages and antenuptial agreements: What you need to know

"I am getting married this year in terms of customary law. My fiancé and I are both professionals and wish to be married out of community of property so that we can manage our own estates. How can we proceed with 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 contract between the parties. This means that parties entering into a customary marriage are allowed to conclude an antenuptial contract, provided that it complies with the requirements of the Matrimonial Property Act  88 of 1984  and the Deeds Registries Act 47 of 1937.

For an antenuptial contract to be valid it must be signed before a notary and registered in the Deeds Office to be of force and effect against any person who is not a party thereto. The signing of the antenuptial contract 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 contract 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 an 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.

Disclaimer: This article is the personal opinion/view of the author(s) and is not necessarily that of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever and no action should be taken on the basis thereof unless its application and accuracy have been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken on the basis of this content without further written confirmation by the author(s). 

February 7, 2024
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