It’s more important than ever that anyone getting married, whether in a traditional ceremony, at the magistrate’s court or in church, should consult an attorney to help explain the options and draft a legally binding agreement that will suit the couple’s particular circumstances
A new Constitutional Court judgment about the validity of customary and civil marriages has huge implications. An untold number of Black couples, married under customary law and later under civil law, are suddenly finding that, in the wake of this judgment, their rights are not protected in the way they had assumed. Now they must face a new reality – their civil marriage isn’t valid and their customary marriage, along with the often-unwritten marital property contract that goes with it, is the one that counts in the eyes of the law.
Read the judgment here:
The story behind this judgment can be told in a couple of sentences: Two people get married to each other twice, first in terms of customary law and later in terms of civil law. Then one of the spouses wants a divorce and the other heads to court claiming that the second marriage isn’t valid. The dispute ends up at the Constitutional Court, where the judges are effectively asked to decide which of the two marriages and their associated contracts, is valid.
The answer will obviously be very important to the two people involved because the two marriages provided for very different settlement arrangements when they end (through death or divorce). But the court’s answer is also important far beyond the particular couple in this case. Because the idea of ‘two weddings’ is very popular in South Africa, many other couples will be affected by the outcome.
Many people will be surprised by the court’s judgment. We unpack it below, but one thing the decision makes very clear is this: the days of rushing into marriage, whether customary or civil, or even beginning lobolo discussions, without first considering and resolving the legal implications, are now completely gone.
Following this judgment, it’s more important than ever that anyone getting married, whether in a traditional ceremony, at the magistrate’s court or in church, should consult an attorney to help explain the options and draft a legally binding agreement that will suit the couple’s particular circumstances. Your future financial happiness and security could well depend on that advice.
Now, let’s consider in a bit more detail the facts of the case heard by the Constitutional Court.
Couple have ‘two marriages’, eight years apart
A couple (named just VVC and JRM to protect their identities) married each other under customary law in August 2011. This marriage was in community of property. In other words, all the assets (and all the debts) of both spouses were merged into one and both were equally responsible for all the debts, present and future, that might be incurred by either of them.
(It’s important to note here that any customary law marriage will automatically be in community of property, unless the couple makes other arrangements well before the wedding and even before lobolo discussions begin.)
Fast forward eight years in the lives of VVC and JRM. It’s 2019 and now the couple decide to get married again, this time under civil law. As part of this process, they sign an antenuptial contract (ANC) under the Recognition Act. This contract completely changes how their marital estate will work: under the ANC that they sign for this wedding, their marriage will be out of community of property and subject to the accrual system. It’s important to understand that, in making these arrangements, they don’t do anything about first undoing the community of property contract created by their initial marriage.
Their new ANC contract – out of community of property and subject to accrual – might suit many couples. It’s quite different from the contract of their first marriage. Now their assets aren’t pooled. Instead, each keeps control of the assets they bring into the marriage. Each is responsible for the debts they incur, with no responsibility for the debts of the other. And the ‘accrual’ arrangement means that, at the end of the marriage, whether by death or divorce, the one whose estate has made the smaller gain is entitled to half the difference between what their estate gained and what their partner’s estate gained.
What happens when one of them wants a divorce?
But then trouble strikes. Not long after their civil marriage, VVC asks for a divorce. This would require their marital estate to be settled and divided as they agreed via the ANC they signed at the time of their second wedding. But the other spouse, JRM, objects.
JRM believes that a divorce at this point would divide their marital estate in the way they had agreed when they signed the new ANC at the time of their ‘second’ marriage (out of community of property, with accrual). JRM also obviously fears that it would produce a less advantageous settlement (to JRM) than would have been the case under their ‘first’ marriage (in community of property).
So JRM’s lawyers go to court and argue that the civil marriage and the ANC the couple signed for their second wedding were invalid and that the divorce had to be settled under the arrangements agreed at the time of the first marriage. Alternatively, they say the section of the Recognition Act that allowed the ‘second marriage’ to take place was unconstitutional.
Why did they say it was unconstitutional? JRM’s attorneys took the view that the section of the Recognition Act under which the couple made the changes to their contract wasn’t strict enough. It allowed people originally married under customary law to change from a marriage in community of property to a marriage out of community of property just by a simple written agreement signed by both parties. They argued that it ought to require a judge to closely examine the changeover before it would be authorised. Because the law doesn’t spell out that this was necessary, the section was unconstitutional, they said.
Judicial approval always needed before marital contract can be changed
JRM’s attorneys weren’t saying anything unusual. The Recognition Act didn’t seem to require the usual process – but any couple, however they are married, who want to change the way their marital regime is structured and sign a new contract must first go through a legal process to change their marital regime. And it must always be approved by a judge before the changes will take effect. This is to make sure that the new arrangement is fair to the couple and to any creditors.
Take, for example, a case where the first marriage arrangement said that both partners shared everything equally (in community of property). Suppose the couple now want to change and sign a new contract, with some assets now being listed as the sole property of one of them (out of community of property). This would mean that one partner would no longer be able to claim a half share in the assets of the other as they could have done under the terms of the ‘first’ marriage. A judge would have to consider all the facts carefully. If the judge decided that this wasn’t fair, then the proposed new contract might well not be approved.
But back to the dispute between VVC and JRM over which ‘marriage’ – and therefore which marriage contract – was valid. The case went first to the high court. There the judge found that the second marriage contract wasn’t valid because there was no judicial oversight. But the judge also held that the section of the Recognition Act that seemed to allow a second marriage without judicial oversight was unconstitutional.
And because the Constitutional Court (the highest court in South Africa) has the final say on whether a law is unconstitutional, the judges of that court then had to reconsider the whole matter of VVC and JRM and their two marriages.
Couples bound by their ‘first marriage’ contract
What the Constitutional Court eventually decided, by a majority of six to three, was that a customary law marriage is just as valid as a civil marriage and that customary law marriages had to be recognised and treated as the equal of any marriage under civil law. In the case of VVC and JRM, this meant their first marriage was valid. And their community of property agreement, associated with their customary law wedding, continued to hold: it would be the marriage contract under which the divorce settlement would have to be finalised.
The reasoning of the court in this case and a series of earlier cases, has been that women who married under an older form of customary law were often left financially vulnerable at divorce or death. To prevent this and to provide protection for women, both Parliament and the courts have been strengthening legal protections under customary law marriage. The ‘standing’ of customary law marriages was also strengthened, so that they are now seen by the law as equivalent to any other marriages and the default position in all customary marriages is that the marriage is in community of property.
Presumably, in the case of VVC and JRM, they did not sign any ANC before their customary marriage. But it doesn’t have to be like that: if a couple wants a customary marriage but believes that an ANC, with or without accrual, would suit them and their financial situation better, they can choose this route. However – and this is really important – the ANC would have to be signed and registered before the customary marriage takes place and should be done even before lobolo discussions are held since these discussions are often seen as part of the marriage contract itself.
Implication of court’s decision: get your marriage contract right first time round
That’s why it’s so important for anyone planning a wedding to schedule a visit to an attorney well in advance of the actual day. It’s essential to have a discussion about the financial and property issues that are always involved when a couple gets married – and it’s essential for those decisions to be taken in good time so that the marriage contract reflects what the two people involved really need.
The case of VVC and JRM shows only too clearly the problems that can arise when the contract hasn’t been thought through carefully before a marriage takes place. A ‘second marriage’ might have worked in the past as an easy way to change the marriage contract to one that better suits the parties but, after this case, because of the way the Constitutional Court says the law must be interpreted, it will never again provide an easy route to fix the problem.
A final word: it may be possible to change a marriage contract, though that depends on the individual facts and how – or even whether – they can remedy the situation is something that an attorney will be able to advise after hearing all the facts of a couple’s case. But, as explained above, even if it is possible, it could be an expensive, lengthy process, subject to a judge’s approval. Inevitably, following this new judgment, there will be ‘married twice’ couples who could now find themselves locked into the contract that goes with their customary law wedding rather than the ANC they thought they had put into place with their second marriage.
So here’s the takeaway: for any couple considering a wedding, the court’s judgment means they should stop immediately and consult an attorney about the legal implications and the contract that would best suit them before they go any further.
Kaamilah Paulse director of the family and matrimonial department at Herold Gie Attorneys and recipient of the M&G 2023 Power of Women awards
