Customary Marriage VS Antenuptial Contract

A and B fell in love and a few years later decided they want to get married. A’s family started with the lobola negotiations, B’s family attended the meetings and both parties’ families came to an agreement with regard to the lobola amount that needs to be paid on behalf of the bride. Luckily B had a lot of savings and were able to pay the lobola amount by the end of the month. The parties then proceeded with their different cultural celebrations and A was handed over to B on the last day of the celebrations. A month later the parties decided that they also wanted to enter into a Civil marriage and contacted our office to assist them with the drafting of their Antenuptial contract. Was the parties able to proceed with the drafting and registering of their Antenuptial Contract?

Requirements for a Customary Marriage:

1. The Prospective spouse must:
   • Be above the age of 18 years;
   • Both consent to be married to each other under the Customary Law.
2. The marriage must be negotiated and entered into or celebrated in accordance with the customary law.

(these requirements can be found in the Recognition of Customary Marriages Act 120 of 1998)

Roll of Antenuptial Contracts in a Customary Marriage:

1. “A customary marriage entered into after the commencement of this Act in which a spouse is not a partner in any other existing customary marriage, is a marriage in community of property and profit and loss between the spouses, unless such consequences are specifically excluded by the spouse in a n antenuptial contract which regulates the matrimonial property system of their marriage” – (Section 7(2) of the above mentioned act).

ANSWER TO THE ABOVE MENTIONED SCENARIO:

1. The parties met all of the requirements in terms of the Customary Marriage Act.
   • Both Parties are above age 18
   • Both parties gave their consent to enter the marriage
   • Lobola negotiations are finalised
   • Final lobola amount paid
   • Celebrations finalised by both parties' families
   • Bride handed over to her husband.
2. The parties are now deemed to be married IN COMMUNITY OF PROPERTY as they did not enter into an Antenuptial contract PRIOR to the finalisation of all the requirements as set out in the Customary Marriage Act.