IN CONVERSATION WITH SUPRISE MANYAI Director of SMV Attorneys
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The Constitutional Court’s ruling this week that antenuptial contracts
entered into after a customary marriage are legally valid will impact
thousands of couples.
Family law expert Bertus Preller noted that couples who followed a similar
pattern — first entering into a customary marriage, then signing an
antenuptial contract, and finally a civil marriage — will be affected.
The court declined to confirm a previous order of constitutional invalidity
made 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 this section does not allow a change
in the matrimonial property regime without judicial oversight.
The ruling was prompted by a couple who entered into a customary marriage
in 2011, signed an antenuptial contract in 2019, and then married civilly in
2021.
09:15
Upon divorce a year later, a dispute arose regarding their property regime.
Preller explained that the core issue was whether the antenuptial contract
signed in 2019 was valid and enforceable.
The majority judgment, written by Judge Steven Majiedt and supported by
five other judges, found the antenuptial contract invalid. They reasoned that
when the contract was signed, the parties were already married under
customary law.
Their customary marriage, concluded without an antenuptial contract, was
automatically in community of property according to Section 7(2) of the Act.
The majority held that an antenuptial contract must be concluded prior to
the marriage it regulates.
Preller noted that at the time of signing the 2019 contract, the parties were
existing spouses, not intended spouses. What they signed was effectively a
postnuptial contract, which under South African law requires judicial
oversight.
The law mandates that parties must make a joint application to the court,
disclose all assets and liabilities, and satisfy the court that there are valid
reasons for changing their matrimonial property regime without prejudice to
any party. This process is designed to protect economically weaker spouses
and creditors, Preller said.
Since the parties did not follow this procedure, the majority judgment ruled
their antenuptial contract invalid and unenforceable. Consequently, they
remained married in community of property throughout both their
customary and civil marriages.
Preller explained that all assets accumulated since their customary marriage
in 2011 are part of a joint estate, with each spouse owning an undivided half
share.
“This could have significant financial implications.”
Assets that JRM (the husband) believed were separate property under the
antenuptial contract are actually jointly owned with VVC (the wife). This
includes assets accumulated during their eight years of customary marriage
and those acquired during their civil marriage after 2021.
The husband initiated divorce proceedings in May 2022, seeking
enforcement of the antenuptial contract. The wife argued the antenuptial
contract was invalid.
Three judges dissented, asserting that the antenuptial contract was valid and
that spouses can execute such a contract after customary marriage but
before civil marriage.
The dissent argued that civil marriage is a distinct legal event and that
spouses should have the autonomy to structure their matrimonial property
affairs.
However, the dissent is not binding law. The majority judgment emphasised
the historical discrimination against customary marriages and the
vulnerability of black women in such marriages.
Judicial oversight is required to protect vulnerable spouses from being
pressured into relinquishing property rights.
This ruling could affect thousands of couples who followed the same pattern
of marriage. All antenuptial contracts executed in this manner are potentially
invalid unless a court order was obtained under Section 21 before execution,
Preller said.
“Many high-net-worth divorces currently in court will be impacted, leading to
increased
entered into after a customary marriage are legally valid will impact
thousands of couples.
Family law expert Bertus Preller noted that couples who followed a similar
pattern — first entering into a customary marriage, then signing an
antenuptial contract, and finally a civil marriage — will be affected.
The court declined to confirm a previous order of constitutional invalidity
made 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 this section does not allow a change
in the matrimonial property regime without judicial oversight.
The ruling was prompted by a couple who entered into a customary marriage
in 2011, signed an antenuptial contract in 2019, and then married civilly in
2021.
09:15
Upon divorce a year later, a dispute arose regarding their property regime.
Preller explained that the core issue was whether the antenuptial contract
signed in 2019 was valid and enforceable.
The majority judgment, written by Judge Steven Majiedt and supported by
five other judges, found the antenuptial contract invalid. They reasoned that
when the contract was signed, the parties were already married under
customary law.
Their customary marriage, concluded without an antenuptial contract, was
automatically in community of property according to Section 7(2) of the Act.
The majority held that an antenuptial contract must be concluded prior to
the marriage it regulates.
Preller noted that at the time of signing the 2019 contract, the parties were
existing spouses, not intended spouses. What they signed was effectively a
postnuptial contract, which under South African law requires judicial
oversight.
The law mandates that parties must make a joint application to the court,
disclose all assets and liabilities, and satisfy the court that there are valid
reasons for changing their matrimonial property regime without prejudice to
any party. This process is designed to protect economically weaker spouses
and creditors, Preller said.
Since the parties did not follow this procedure, the majority judgment ruled
their antenuptial contract invalid and unenforceable. Consequently, they
remained married in community of property throughout both their
customary and civil marriages.
Preller explained that all assets accumulated since their customary marriage
in 2011 are part of a joint estate, with each spouse owning an undivided half
share.
“This could have significant financial implications.”
Assets that JRM (the husband) believed were separate property under the
antenuptial contract are actually jointly owned with VVC (the wife). This
includes assets accumulated during their eight years of customary marriage
and those acquired during their civil marriage after 2021.
The husband initiated divorce proceedings in May 2022, seeking
enforcement of the antenuptial contract. The wife argued the antenuptial
contract was invalid.
Three judges dissented, asserting that the antenuptial contract was valid and
that spouses can execute such a contract after customary marriage but
before civil marriage.
The dissent argued that civil marriage is a distinct legal event and that
spouses should have the autonomy to structure their matrimonial property
affairs.
However, the dissent is not binding law. The majority judgment emphasised
the historical discrimination against customary marriages and the
vulnerability of black women in such marriages.
Judicial oversight is required to protect vulnerable spouses from being
pressured into relinquishing property rights.
This ruling could affect thousands of couples who followed the same pattern
of marriage. All antenuptial contracts executed in this manner are potentially
invalid unless a court order was obtained under Section 21 before execution,
Preller said.
“Many high-net-worth divorces currently in court will be impacted, leading to
increased
