Guest; Harry Joffe - Head of Legal at Discovery Life

The Constitutional Court (ConCourt) has found that a divorced couple’s antenuptial contract, signed after their customary marriage, is invalid because it was never formalised through the courts.

The judgment was delivered on Wednesday, 21 January, bringing clarity to the legal position governing matrimonial property regimes where couples enter into both customary and civil marriages.

The case involved a couple identified as J.R.M (plaintiff) and V.V.C (defendant), who entered into a customary marriage on 5 August 2011.

At the time of their marriage, no antenuptial contract was concluded.

This resulted in the marriage being in community of property, with both spouses acquiring equal, undivided shares in their “joint estate”.

Several years later, on 19 February 2019, the couple signed an antenuptial contract.

The document stipulated that a civil marriage they intended to conclude in the future would be out of community of property, subject to the accrual system.

The civil marriage was eventually concluded on 10 June 2021.

The relationship subsequently deteriorated, with both parties stating that the marriage had irretrievably broken down and could not be restored.

In court proceedings, J.R.M contended that it had always been the mutual intention of the parties for their marriage to be out of community of property and governed by the accrual system.

A constitutional challenge against Section 10(2) of the Recognition of Customary Marriages Act was later launched.

Section 10(2) provides that when spouses to an existing customary marriage conclude a civil marriage, their matrimonial property regime remains in community of property unless an antenuptial contract provides otherwise.

However, V.V.C argued that the effect of the Section 10(2) caused her to lose ownership rights over assets registered in her husband’s name, despite those assets forming part of the joint estate created by the customary marriage.

ADDITIONAL INFORMATION

https://www.citizen.co.za/news/south-africa/courts/concourt-customary-marriage-antenuptial-contracts-valid/