Civil marriages don’t omit existing customary marriages, rules ConCourt

The Constitutional Court (ConCourt) has ruled that a civil marriage does not overlook an existing customary marriage.

But, instead, creates a single continuous marriage governed by different legal systems at different times.

This confirms the current law that an ante-nuptial contract concluded after a customary marriage is invalid and unenforceable rendering the marriage in community of property.

The judgement follows a divorce dispute where a couple signed an ante-nuptial contract years after a customary marriage and claimed that the marriage should be out of community of property.

The ConCourt looked at two pieces of legislation: Section 21 of the Matrimonial Property Act and Section 10(2) of the Recognition of Customary Act. 

The High Court ruled Section 10(2) unconstitutional and invalid to the extent that it permits arbitrary deprivation of assets to the financially weaker spouse.

But the ConCourt does not agree that this section is unconstitutional and invalid.

Attorney at the Women’s Legal Centre Khensani Motileni said the ruling doesn’t help to clarify this section of the law.

“Had the constitutional court confirmed the unconstitutional invalidity that would give women and men legal certainty, it’s not that you must now doubt yourself, but it would have given legal certainty.”

The other part of the judgement confirmed that an ante-nuptial contract does not overlook a customary marriage.