Antenuptial contracts essential for customary and civil law marriages

Customary marriages hold the same legal status as civil law marriages, explains Professor Anthony Diala, Director of the Centre for Legal Integration in Africa and expert in African legal pluralism.

A recent court ruling reaffirmed that a customary marriage, together with the default marital property system of community of property, is fully recognised under South African law. Consequently, if a civil marriage is entered into after a valid customary marriage, the civil marriage and any related antenuptial contract will be rendered null and void.

Under the Recognition of Customary Marriages Act 120 of 1998, customary marriages are afforded full legal recognition in South Africa. The Act validates both monogamous and polygamous unions and grants women the same legal status and rights as those in civil marriages.

"Customary law marriage now enjoys the same level of legal respect and recognition as a civil law marriage. What this judgment has done is to affirm that all the benefits that one can enjoy under a civil law marriage can now be enjoyed by a customary marriage," explains Diala.

"So it's a question of what kind of contract accompanies a marriage, no longer whether a marriage is inferior to the other or whether a subsequent marriage will nullify an earlier marriage. So, without a contract to specify the consequences of that marriage then the previous marriage subsists. Even if you take on a previous marriage, the first one will remain valid."

"Whether you're married under customary law or civil law, get your contract in order. If you fail to take out a contract and fail to follow due process for registering that contract, then the marriage is automatically 'in community of property', which means 50% to each party in the event of divorce."