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Balancing Customary and Civil Marriages in South African Divorce and Family Law

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Balancing Customary and Civil Marriages in South African Divorce and Family Law

Balancing Customary and Civil Marriages in South African Divorce and Family Law

CASE NAME: S.M. S v V.R.S

CITATION: [2019] ZALMPPHC 5

COURT WHERE THE CASE WAS HEARD: Limpopo High Court, Polokwane

DATE OF JUDGMENT: 15 March 2019

Introduction To the Matter

This case revolves around a divorce dispute stemming from a marriage transitioning from customary to civil.

Key issues include the validity of the customary marriage, determination of the marital regime, and a claim for rehabilitative maintenance. Cultural differences, postnuptial contract validity, and financial support post-divorce are pivotal aspects.

Overview Of The Matter At Hand

This divorce case centres on a transition from a customary to civil marriage, addressing key issues like the validity of the customary union, determination of the marital regime, and a claim for rehabilitative maintenance. 

Cultural differences, the validity of a postnuptial contract, and considerations for financial support post-divorce play crucial roles in the proceedings.

Marriage Out of Community of Property | Martin Vermaak Attorney

Legal Issues Raised In The Case

The legal issues raised were the validity of the customary marriage, the marital regime of the spouses and the granting rehabilitative maintenance.

Relevance To Divorce And Family Law

This case is pertinent to divorce and family law as it highlights the transition from customary to civil marriage, emphasising the importance of clear marital regimes and contractual arrangements, setting precedents for similar cases.

Applicable Legislation

Recognition of Customary Marriages Act 120 of 1998

Divorce Act 70 of 1979

Deeds Registries Act: 47 of 1937

Summary Of The Relevant Legislation

Section 3 (1) of the RCMA provides the requirements for a valid customary marriage being that the parties to a marriage must be over the age of 18 years old, consent must be made, and that the marriage must be entered into in accordance with customary law.

Section 10 of the Recognition of Customary Marriages Act (RCMA) allows parties to a customary marriage to enter into a civil marriage under the Marriage Act, provided that neither spouse is in a subsisting customary marriage with another person.

Section 7(2) of the Divorce Act allows a court to grant a maintenance order, specifying the payment period based on various factors considered by the court.

S86 of the Deed Registries Act this provides that A antenuptial contract must be registered with in the specific period mentioned if s87 of the act if not then the contract will have no force against third parties.

S87 of the Deed Registries Act states that an antenuptial contract must be registered within three months from the date of execution.

Explanation Of How The Legislation Applies To The Case

The court assessed the validity of the customary marriage in line with the requirements of Section 3 of the Recognition of Customary Marriages Act (RCMA). Applying Section 10 of the RCMA, it recognized that the spouses, being unmarried to others, were allowed to enter into a civil marriage. 

The court further granted rehabilitative maintenance to the Plaintiff based on the Defendant’s financial capacity post-divorce.

S2 of the Divorce Act in this matter concerned the Plaintiff’s entitlement to rehabilitative maintenance against the Defendant, the court had to take into account facts that supported that claim.

S86 and 87 of the Deeds of Registries Act was applied to determine the validity of the PNC and if it has force against third parties.

Comparison To Other Relevant Legislation

Section 21 of the Matrimonial Property Act provides spouse married in community of property to amend their marital regime by way of an antenuptial contract.

Background And Facts Of The Matter

The partes were married under customary law and later changed their marriage to a civil marriage and entered a Post Nuptial Contract out of community of property with the exclusion of the accrual and Plaintiff instituted divorce proceedings against the Defendant and seeking relief from the court to determine the marital regime, the PNC validity and rehabilitative maintenance.

Detailed Description Of The Facts Leading Up To The Case

Parties were Pedi and Tsonga respectively and engaged in cultural and traditional practices in order to be customarily married, they concluded their customary marriage on 18 May 2002 and proceeded to enter into a civil marriage and change their marital regime by entering a PNC. The Plaintiff instituted a divorce action against the Defendant.

Chronological Order Of Events

4 March 2000: Defendant’s family sends emissaries to the Plaintiff’s family to ask for her hand in marriage. Negotiations take place, including the payment of lobola.

May 18, 2002: Defendant’s family sends emissaries again to finalise negotiations. The Plaintiff’s family accepted a reduced lobola amount from R8000 to R5000. A celebration, including the blessing of rings, takes place, and part of a slaughtered beast, cakes, and drinks are given to the defendant’s family.

January 9, 2006: The parties attend the Home Affairs Department to enter into a civil marriage and registered a PNC.

15 March 2019: Judgment was granted.

Relationship Between The Parties Involved

S.M.S is the Plaintiff and V.R.S is the Defendant are the parties to the matter.

The parties were initially customarily married under the Recognition of Customary Marriages Act (RCMA) and subsequently entered into a civil marriage. They later altered their marital regime, transitioning from in community of property to out of community of property with the exclusion of the accrual system.

Issues To Be Determined

Whether the customary marriage entered into by the parties on 18 May 2022 is valid.

Whether the parties are married in community of property or out of community of property with the exclusion of accrual system

Whether the plaintiff is entitled to rehabilitative maintenance and if so the quantum and duration of such maintenance.

Primary Legal Questions Raised In The Case

Whether the Parties did change their marital regime from in to out of community of property with the exclusion of the accrual in terms of the post nuptial contract signed by them 

Explanation Of The Significance Of Each Issue

The parties were in a dispute regarding the validity of the customary marriage, as to the ceremonies and cultural practices that were performed by the parties families respectively. The court would have to determine if the parties entered into a customary marriage or not.

Whether the parties marital regime was in or out of community of property with the exclusion of the accrual system, holds significance due to the fact that the matter is a divorce action and proprietary consequences must be established therefore before the parties are granted a divorce.

The court had to determine whether the Plaintiff was entitled to rehabilitative maintenance due to her being financially dependant on the Defendant, her financial needs and obligation, age and standard of living. This must satisfy the court in making an order for rehabilitate maintenance.

How The Issues Relate To Divorce And Family Law In South Africa

Parties that assume that they have entered into a customary marriage and the court determines that in terms of s3 of the act, that the parties are not a party to customary this will affect their status as the parties will be unmarried persons.

This will cause complications to their estate, children, and creditors.

Being in or out of community of property with the exclusion of the accrual affects the parties ability to enter into transactions, its important to know what marital regime the parties have entered into as this entails proprietary consequences.

The court may grant an order for rehabilitative maintenance should the spouse who seeks the order satisfy the court with regards to the factors the court takes into account.

Legal Arguments Presented

The Plaintiff alleged that both Parties entered into a customary marriage in compliance with the RCMA.

The Defendant refutes that claim since cultural practices were not followed to its totality, with regards to the handing over of the bride. Being a Tsonga certain practices needed to be complied for the parties to be married such as mohlabiso which consist of a beast being slaughtered at the groom’s house and the brides.

The Plaintiff argued that the Post Nuptial Contract entered into by the parties was binding on parties to the married but not the third parties.

The Defendant argued that there was an agreement and intention to change their marital regime from in to out of community of property with the exclusion of the accrual.

The Plaintiff argued that she is not financially capable of maintaining general expense due to the fact that she is unemployed and is seeking employment.

She had to provide transport to her children, all the while the Defendant is employed, earning R75000 per month and is married to another female and resides with her and their child.

The Defendant argued that he is not liable to maintain the Plaintiff post-divorce due to the marital regime.

Summary Of The Arguments Made By Both Parties

The Plaintiff argues that both parties entered into a valid customary marriage, in signing the Post Nuptial Contract arguing that it only applied to the parties and not third parties and that her claim for rehabilitative maintenance is to place her in a better financial position to maintain the children and her expenses.

The Defendant’s argument were that he did not enter a customary marriage with the Plaintiff as cultural practices were not performed correctly and that the Defendant knew, agreed and had intention to change their marital regime and that the marital regime absolved him in being liable for rehabilitative maintenance.

Evaluation Of The Strength And Weaknesses Of Each Argument

The court held that the Parties customary marriage was valid due to the Defendant failed to provide evidence to the contrary and that the Plaintiff’s evidence established that was entered into and celebrated.

The court held that the Parties entered into a initial verbal agreement which constitutes an informal ante-nuptial contract. The Plaintiff had conceded that she agreed to be married out of community of property.

The court held that the PNC was registered within three months of its execution and therefore was binding not only them and third parties.

The Defendants argument that he was not liable to pay rehab was thwarted by the court due to the fact that his conduct contributed to the break down of the marriage and that he had the financial capability to pay.

Discussion Of Precedents And Other Relevant Case Law

LNM v MMM [2021] ZAGPJHC 563: –

The court held if souses are to amend their marital regime, they must do so with the courts assistance, or such PNC will be invalid and in community of property unlike the above case.

Court’s Decision And Order

The customary marriage entered into by the parties is valid;

The parties are married to each other out of community of property with the exclusion of accrual system;

A decree of divorce is granted;

The defendant is ordered to pay rehabilitative maintenance for a period of twelve months in the amount of R5000.00 per month effective from the date of this order.

Each party is to pay his or her costs.

Summary Of The Court’s Ruling

The court confirmed that the customary marriage was valid and that the Parties were married out of community of property. Ordered maintenance for a specific period and each party being liable for their own legal costs.

Explanation Of The Reasoning Behind The Decision

The court’s reasoning with regards to decisions was as follows:

Customary marriage was that it was entered into and celebrated in terms of customs. 

The Parties had intention to change their marital regime and signed a PNC which was registered three months after execution. 

The court considered the conduct of the Defendant and the financial position of the Plaintiff in order to grant an order for maintenance.

The Order Made By The Court

The order of the court was as follows:

The customary marriage entered into by the parties is valid;

The parties are married to each other out of community of property with the exclusion of accrual system;

A decree of divorce is granted;

The defendant is ordered to pay rehabilitative maintenance for a period of twelve months in the amount of R5000.00 per month effective from the date of this order.

Each party is to pay his or her costs.

Implications For Divorce And Family Law

The implication were that in confirming the validity of the customary marriage, determining the marital regime as out of community of property with the exclusion of accrual, and validating the postnuptial contract highlight legal importance the court will take into account legislation and precedents to grant any order sought from the parties

Analysis Of The Impact Of The Case On Divorce And Family Law In South Africa

This case significantly shapes South African family law by confirming customary marriage validity, setting a precedent for marital regimes, emphasising the importance of executed marital contracts, and recognizing cultural sensitivity.

The court’s decision on rehabilitative maintenance highlights a commitment to fairness post-divorce, and the case highlights the importance of legal advice and adherence to formalities, contributing to a more uniform approach in family law practices.

Lessons To Be Learned From The Case For Potential Clients

Potential clients should prioritise seeking legal advice before and during marriage to understand legal and financial implications. This case highlights the importance of clear marital contracts, adherence to legal formalities, and awareness of cultural differences.

Clients should anticipate potential financial considerations in divorce and explore alternative dispute resolution methods for a smoother process. 

In essence, informed decision-making, legal compliance, and cultural awareness are key in navigating divorce proceedings effectively.

Recommendations For Individuals Facing Similar Situations

Seek immediate legal advice to understand your situation, gather necessary documentation, and consider financial planning.

Judge And Legal Teams

Judge: M.V Semenya

Attorneys for Plaintiff: DDKK INC

Counsel for Plaintiff: Mrs. M De Klerk

Attorneys for Defendant: Du Doit Swanepoel Steyn and Spruyt

Counsel for the Defendant: ADV M S Schnehage

Read More:
Read the Full Judgement Here

What Are the Requirements for A Valid Customary Marriage?

Protecting Your Assets with an Antenuptial Agreement in South Africa

 

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