ConCourt declines to confirm Recognition of Customary Marriage Act is constitutionally invalid

The Constitutional Court has declined to confirm the Pretoria High Court's declaration that the Recognition of Customary Marriage Act is constitutionally invalid.

The divorce case in question involved a dispute over the validity of an antenuptial contract (ANC) signed after a customary marriage was concluded.

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It clarified that the section in the Constitution does not authorise spouses to execute an ANC after the conclusion of a customary marriage without the court’s approval.

The court held that in this case, the antenuptial contract was invalid because it was not executed in compliance with the Matrimonial Property Act.

Attorney at the Women's Legal Centre, Khensani Motileni, said now the work will begin to make sure those opting for a customary marriage are aware of what the law allows.

“For there to be real impact, though, women's urgency in negotiating their rights and education on those rights are critical. The RCMA historically was enacted to ensure equality in and of customary marriage... so, much more needs to be done to ensure that those choosing customary marriage are aware of what the law allows. Similarly, the State must ensure that laws and policy address discrimination and not amplify it.”