03/01/2025
SPOUSES ARE ALLOWED TO CONCLUDE DUAL MARRIAGES, but...
In African cultures, it is a common practice to enter into a customary marriage and later conclude a civil marriage.
Firstly, the fiances consent to marry, negotiate, and fix the lobola price, families celebrate the union, and the parties are husband and wife.
Lastly, in many instances, and at a later date, the spouses further conclude a civil marriage. Of note here is the Marriage Act 25 of 1961 (Act 25 of 1961).
Without signing an agreement commonly known as the antenuptial contract (ANC), the marriage is in community of property.
In South African law, there are two marital property regimes, namely, in community of property and of profit and loss, and out of community of property. The problem begins when spouses decide to change their marital property regime - our laws permit that. A post-nuptial contract is signed.
There are two legislations that regulate the changes of the nature of the marriage regime, viz, the Matrimonial Property Act 88 of 1984 (Act 88 of 1984) and the Regulation of Customary Marriage Act 120 of 1998 (Act 120 of 1998).
En passant, the dual marriage can not be a civil marriage first and thereafter conclude a customary marriage. Of note here is section 10(4) of Act 120 of 1998.
In the case of J.R.M v V.V.C and Others (25007/2022) [2024] ZAGPPHC 547; [2024] 3 All SA 853 (GP) (10 June 2024) parties concluded a customary marriage in 2011. Their matrimonial property regime by default is in community of property. At a later date (2019) they opted to convert to out of community of property by signing a antenuptial contract (ANC) as they were stepping into a civil marriage.
Various attacks were tendered on section 10(2) of the Act 120 of 1998. One, that the section allows spouses in a monogamous customary marriage to change their property regime from in community of property to out of community of property WHEN ENTERING A CIVIL MARRIAGE, without judicial oversight. Two, that it allows for a married person to marry the same person twice, which is an incongruity that creates an illusion that the civil marriage ranks above the customary marriage.
In contrast, section 21 of the Matrimonial Property Act 88 of 1984 provides for a judicially endorsed conversion - the spouses must approach the court.
In this case, the High Court held that all monogamous customary marriages are regulated by section 7(2) of Act 120 of 1998. The court found section 10(2) to be unconstitutional as far as it permits the conversion of the marriage regime without the endorsement of the judiciary.
The court concluded that the antenuptial contract concluded by the parties in 2019 is declared invalid (rather considered as a post-nuptial contract of the customary marriage).
Therefore, before you send your regiment to start the lobola negotiations, you are advised to approach us (lawyers) in order to give you proper legal counsel regarding the prons and cons of the matrimonial property systems.
