A Constitutional Court judgment on Wednesday refused to confirm a high court ruling that had declared a key section of the Recognition of Customary Marriages Act unconstitutional.
It held that the act did not permit a change in a matrimonial property regime without judicial oversight.
The case stems from a divorcing couple’s (VVC and JRM) dispute. They were married first under customary law on August 5 2011, resulting in a default in the community of property marriage regime.
Eight years later, the couple decided to conclude a civil marriage and signed an antenuptial contract (ANC) that provided that the civil marriage would be out of community of property and subject to the accrual system.
They concluded the civil marriage in June 2021 without dividing the joint estate created by the customary marriage.
In 2022 the man filed for divorce and enforcement of the ANC against his wife.
In response, the wife held that the ANC was invalid. In the alternative, she said if the ANC was held to be valid, then section 10(2) of the Recognition Act was unconstitutional.
You have to do a section 21 application if you want to change your marital regime. So people must make sure their [antenuptial contracts] are properly registered and properly given as an order of court
— Nthabiseng Dubazana, attorney
The basis for the alleged unconstitutionality was that the challenged provision permitted spouses married under customary law to change their matrimonial property regime from in community of property to out of community property by a mere written agreement and without judicial oversight.
Section 10(2) of the act states that when a marriage is concluded, it is in community of property unless such consequences are specifically excluded in an antenuptial contract that regulates the matrimonial property system of their marriage.
The woman argued that section of the act could potentially harm the economically weaker spouse.
The high court upheld the woman’s challenge that the agreement between the parties was a postnuptial contract that improperly altered the matrimonial property regime and was invalid due to the absence of judicial oversight as required by section 21 of the Matrimonial Property Act.
Despite this finding, the high court also held that the lack of judicial oversight differentiated between spouses under the different pieces of legislation, as civil marriage spouses were afforded legal protections that customary spouses lacked.
The high court declared section 10(2) of the Recognition Act unconstitutional.
The Constitutional Court was then approached to confirm the order of constitutional invalidity of the section. In its judgment, the court did not confirm the high court order.
It found that once the high court found the ANC invalid for failure to follow section 21 of the Matrimonial Property Act, there was no need to answer the constitutional challenge.
Legal expert Nthabiseng Dubazana from Dubazana Attorneys said the Recognition of Customary Marriages Act stated that marriages were automatically in community of property.
“So it is more protection so to speak for them, for the spouses, but it’s also a higher liability if your spouse is reckless with money ... you also assume that liability.”
Dubazana said if you are married in terms of the other marital regimes, to effect a change, the couple must go to court.
According to Dubazana, this means that all those ANCs concluded after customary marriages were null and void because they were not concluded under judicial supervision.
“So you have to do a section 21 application if you want to change your marital regime. So people must make sure their ANCs are properly registered and properly given as an order of court,” she said.
She said the ruling especially covers the vulnerable.
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