June is the month for the youth so I feel this is the best time to talk about marriage. Some people are married but they are not even aware of it. Yet others are NOT married yet they think they are married. Such is the nature of civil and customary unions. When you add polygamous marriages, things can get really interesting and complex so before you have that lobola party / celebration, you might want to check with me or your lawyer, if that would not result in you being declared married in terms of customary law.

Getting married is serious business so before you say “I do”, please take time to read chapter 15 of my book From Debt to Riches. The chapter outlines the different types of marital regimes but you must see a lawyer to help you draft an ante-nuptial contract, should you decide to marry ANC. The lawyer might charge you between R5 000 and R10 000 to draft your prenup, if you do it before you get married. One of my customers is currently converting his marriage of over 10 years from in community of property to ANC and so far they have paid R40 000 in legal fees. Their creditors will also have a say so success is not guaranteed

Thanks to Advocate Anneke for allowing me to share the following article on this topic with you

PROPRIETARY CONSEQUENCES OF AFRICAN CUSTOMARY MARRIAGES
 
In South Africa, we have the Recognition of Customary Marriages Act 120 of 1998, which regulates African customary marriages. Note that this Act does not cover customary religious marriages like Hindu or Muslim marriages.
 
According to Section 3 of the Act, the requirements for the validity of a customary marriage are:

  1. The prospective spouses must both be over the age of 18 years;
  2. They must both consent to be married to each other under customary law; and
  3. The marriage must be negotiated and entered into or celebrated in accordance with customary law

Section 4 of the Act also provides that a customary marriage must be registered within a period of three months after the customary wedding took place.

In terms of Section 7 of the Act, the proprietary consequences of a registered customary marriage is in community of property, unless the spouses in the union registered an antenuptial contract, in which case, the marriage will be recognized as being out of community of property, with or without the application of the accrual system.

What happens in the case where spouses in a customary union do not register their marriage?
It is particularly problematic when the spouses in a customary marriage want to separate or divorce, and they cannot reach an agreement on the division of the assets. 
It could mean that spouses can lose their right to any of the assets, simply because their marriage was not registered. It is therefore advisable that spouses register their customary marriage with the Department of Home Affairs to regulate ownership of assets.
Traditionally, African customary marriages can recognize more than one spouse. Subsequent customary marriages must similarly comply with Section 3 of the Act. In addition, Section 7 requires that an application must be made to the court to approve a written contract which will regulate the future matrimonial property system.

In the case of Ngwenyama v Mayelane & another (474/11) [2012] ZASCA 94, the deceased entered into a second customary marriage, which was not registered. The Court held that the fact that the marriage was unregistered does not invalidate the marriage, but that it would be one out of community of property.

Please note that the above newsletter is for information purposes only. If you are planning to get married and need guidance on the above, see a lawyer or contact us at info@thuthuka-sa.co.za