It has been commented, in this case by the Court, that in marriage, women have less bargaining power than men, having entered the marriage with less money, and consequently, being more dependent on their husband.
It was stated in this case, that in the modern era, although women have found more opportunities in the working environment, for the most part, women still find themselves the spouse with the weaker financial position, and once again, are the party with lesser bargaining power.
Thus, when headed into a marriage, this can see a woman without the ability to choose their preferred matrimonial property regime, or once in the marriage, without the ability to change said regime.
The Court noted that it can therefore be seen that the financially weaker spouse in a relationship can be disadvantaged by the decisions of the financially stronger spouse, especially when it comes to a divorce.
It should be noted that as was mentioned above, women often happen to be the financially weaker spouse, and men the financially stronger.
As time progresses however, it may be the case that income will not differ on basis of sex, and we will simply deal the financially stronger and weaker spouse, but for the time being, and as shown in this case, it behoves one to remember this is not the common case at present.
In this matter, a couple were customarily married to one another on the 5th of August 2011, without an antenuptial contract, hereafter referred to as an ANC. According to the Recognition of Customary Marriages Act, hereafter referred to as the RCMA, this results in the customary marriage being one in community of property.
On the 19th of February 2019, the couple then signed an ANC before they concluded a civil marriage with one another. In terms of said ANC, their civil marriage would be out of community of property, subject to the accrual system.
At present, the Plaintiff argues that this ANC is valid, while the Defendant claims the opposite, alongside further submissions.
On the 10th of June 2021, the civil marriage was concluded, without having divided the joint estate that was created by the customary marriage.
The marriage would subsequently breakdown, with the parties seeking a divorce.
The parties served the relevant papers on one another, with the Defendant’s Plea and Counterclaim raising a constitutional issue.
On the date when the matter was to be heard on the 30th of November 2023, at which point the Court invited interested parties to act as friends of the Court.
The matter would then be heard on the 4th of December 2023.
The Court found that it was further required to determine the following:
After a valid customary marriage was entered into, where a default system of community of property is applicable, whether or not an agreement to conclude a civil marriage, out of community of property, has the effect of depriving a financially weaker spouse of her ownership in undivided shares of the assets that constitute part of her joint estate created by the customary marriage.
The Plaintiff contended that in terms of Section 10(2) of the Act, the customary marriage was converted to a civil one.
Further, the Plaintiff argued that it had always been the spouses’ intentions to be married out of community of property, as evidenced by their ANC, and that their civil marriage should be seen as one out of community of property, with the inclusion of the accrual system.
The First Defendant argued that:
She averred that by converting her marriage from in community of property to out of community of property, the ANC infringed on the rights she had accrued in terms of the joint estate, where under a civil marriage, a Court Order is necessary to alter the proprietary aspects of a marriage.
As a result, she argued that:
Under Section 10(2) of the RCMA, she loses her right of ownership over assets that bear the name of the Plaintiff, that were held in the joint estate.
It is contended that this provision allows for legal uncertainty by not providing clarity on the status of the Customary Marriage joint estate, following the signing of the ANC and civil marriage.
It is further argued that this Section allows for financially weaker spouses to lose the assets that form part of their joint estates, since these assets would be seen as the financially stronger spouses’ property following the signing of the ANC. It is argued that this amounts to the expropriation of the common property without compensation.
According to the First Defendant, Section 10(2) of the RCMA disregards the joint estate and creates a loss of ownership and is therefore, contrary to the main purpose of the Act.
Further, this Section does not recognise the matrimonial property regime created by the customary marriage when the civil marriage was concluded by the parties, allowing the matrimonial property regime to be altered without judicial oversight, where the MPA requires that civil marriages follow Section 21 to alter the matrimonial property regime.
Consequently, the First Defendant contends that this provision places the civil marriage above the customary one, with the Marriages Act being seen as superior to the RCMA.
She further argues that unless the civil marriage grants each party the same rights as were in the customary marriage, then Section 10(2) is contrary to Section 8(1), which states that only a Court Order for divorce can dissolve a customary marriage.
Finally, she argues that the Section undermines the Constitutional protection afforded to black women in particular. It appears to discriminate against them by denying them ownership and control of their marital property through the signing and registration of ‘ANCs after entering into customary marriages.
Thus, it makes the Section unconstitutional and invalid, though capable of remedy by ‘reading in’. Said ‘reading in’ will be discussed further below.
The amicus curiae submitted that in terms of the law, parties to a monogamous customary marriage may civilly marry each other in terms of the Marriages Act and the RCMA.
It is argued that the new marriage is deemed to be in community of property unless an ANC provides otherwise. According to the amicus curiae, the customary marriage is effectively replaced by the second marriage.
The amicus curiae further claim, that on a proper interpretation of Section 10 of the RCMA, there can be no doubt that a further civil marriage is intended, and such marriage is a distinct further marriage that is separate from and in substitution of the previous customary marriage.
In that, two separate marriages take place. This provision effectively allows a married person to marry the same person again, which ordinarily and in terms of the common law would not be allowed.
It is further submitted that the civil marriage replaces the customary marriage and the ANC entered after the customary marriage but before the civil marriage, will control the marriage’s future proprietary consequences.
Further, the intended agreement is an ANC, argued the amicus curiae, who submitted that the ANC was entered into before the civil marriage, and consequently, cannot be a variation of the parties’ customary marriage matrimonial property regime.
According to the amicus curiae, the ANC was further entered into before the civil marriage was concluded and cannot qualify as a postnuptial contract.
It was further maintained by the amicus curiae that this contract does not seek to regulate the proprietary consequences of the customary marriage, nor did the First Defendant and the Plaintiff attempt to change their matrimonial property regime, but instead entered two separate marriages, governed by separate rules, where one marriage terminated the other.
The amicus curiae therefore contended, that had the parties remained customary married, the leave of the Court would be necessary for a variation of their matrimonial property regime.
The amicus curiae further reasoned that Section 10 of the RCMA is troublesome for offering no protection to a spouse less bargaining power than their partner in negotiating a new matrimonial property regime.
It was noted however that people always have the freedom to contract, and the inequality between the parties in bargaining power does not remove the validity of the contract.
Notwithstanding the conclusion of a civil marriage, it was proposed that the joint estate, established by the customary marriage, will still exist, and must be divided as it would be upon divorce and death.
In layman’s terms, the ANC that has the civil marriage be out of community of property does not affect the rights in terms of the joint estate that was made by the customary marriage.
This matter was allocated to be a special case for the adjudication of certain points of law.
The matters to be determined were:
The Court held that several provisions of the Constitution were applicable to the matter at hand. According to Section 211(3) of the Constitution, the Court must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.
Further, in terms of Section 31(1)(a) of the Constitution, people who are members to a cultural community may not be denied the right, with other members of that community to enjoy their culture.
Section 39(2) of the Constitution holds that when performing legislative interpretation, and when developing the common law or customary law, all Courts must promote the spirit, purport and objects of the Bill of Rights.
Section 9(1) of the Constitution dictates that all people are equal in the eyes of the law with the right to equal protection and benefit of the law. As such, the state may not unfairly discriminate directly or indirectly against anyone based on grounds including culture and sex, and such discrimination is unfair unless proven to be fair.
Section 25(1) of the Constitution states that no-one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.
Finally, in terms of Section 36, all these rights may be limited.
It can therefore be said that a number of Constitutional Rights directly affected the matter at hand and had to be considered in the Court’s decision.
One of the objectives of the RCMA is to give each spouse equal status and capacity, as well as to regulate the proprietary consequences of customary marriages.
Section 6 of the RCMA states that on the basis of equality, a wife in a customary marriage is equal to her husband and, subject to the matrimonial property system governing the marriage, has full status and capacity, including the capacity to acquire and dispose of assets, to enter into contracts and to litigate, as well as any rights and powers that she may have under customary law.
In the case of Ramuhovhi and Others v President of the Republic of South Africa and Others, the Constitutional Court held that Section 6 allowed for equality between spouses in marriage, giving full legal capacity to wives and allowing them them the entitlement to acquire and dispose of assets.
In Gumede (born Shange) v President of the Republic of South Africa and Others, it was further held by the Constitutional Court that the RCMA made provision for the recognition of customary marriages and assisted in creating gender equality within marriage.
It was further stated that the RCMA regulates the proprietary consequences, the capacity of spouses and governs the dissolution of the marriages, which must be done with judicial supervision.
Finally, in terms of Section 7(2) of the RCMA, a monogamous customary marriage is a marriage in community of property and of profit and loss, unless such consequences are specifically excluded by the spouses in an antenuptial contract which regulates the matrimonial property system of their marriage.
Clearly the Court would need to aim to achieve substantive equality for both spouses in the determination of the matter.
Section 10 of the RCMA states that spouses in a monogamous customary marriage are capable of contracting a civil marriage with one another in terms of the Marriage Act, 25 of 1961.
Such a marriage will be one in community of property and of profit and loss, unless specifically excluded in an ANC which regulates the matrimonial property regime.
The Section further states that Chapter III and Sections 18, 19, 20 and 24 of Chapter IV of the Matrimonial Property Act, 88 of1984, apply to any in community of property civil marriage that was a monogamous customary marriage.
Finally, should a spouse be in a civil marriage, they will not be capable of entering any other marriage.
In the Case Of S.M.S V V.R.S, the parties concluded a customary marriage, subsequently changed to a civil marriage. An agreement was made that the civil marriage be one out of community of property, with the exclusion of the accrual system and was subsequently registered with the Deeds Registry following the civil marriage.
The validity of the contract was disputed, and the Court deemed the verbal agreement between the parties to be an informal ante-nuptial contract and concluded that the subsequent civil marriage was out of community of property.
The Court held that it appeared from the wording of Section 10 of the Recognition Act, that this change of marriage can be done without the intervention of the Court.
In LNM v MMM however, the Court held that the decision in SMS v VRS is based on an interpretation of Section 10 of the RCMA, which envisages a change of the marriage system by entering a marriage in terms of the Marriage Act, and although the Court treated the contract between the parties in SMS v VRS as an antenuptial contract registered postnuptially.
Thus, the Court in SMS v VRS enforced the contract without a preceding Court order authorising the registration of the antenuptial contract postnuptially.
The Court therefore held that such was out of order, and judicial oversight was necessary to register the ante-nuptial contract, and in effect, change the marital property regime.
Under Section 21(1) of the Matrimonial Property Act, parties to a marriage may jointly apply to a Court for leave to change the matrimonial property system, including the matrimonial property regime.
The Court may, at its discretion, may order that such matrimonial property system shall no longer apply to their marriage, and authorise that a notarial contract by which their future matrimonial property system is regulated, be entered into, under any conditions that the Court deems fit.
Section 7(5) Of The RCMA, ironically enough, states that Section 21 of the MPA is applicable to any monogamous customary marriage entered into after the commencement of the RCMA.
With such heavy emphasis on the language of various provisions in the submissions, it is no surprise that the court commented on such.
It was noted by the Court that statutes should be interpreted in a manner that fulfils their purpose and objective, bearing in mind context and all other relevant factors.
The Court held that according to Section 8 of the RCMA, a customary marriage can only be dissolved by a decree of divorce.
In testing for discrimination, the Court resolved to see the test as set out in Harksen v Lane, which tests whether or not a provision distinguishes between different groups or categories of people, does this amount to discrimination, and does it amount to unfair discrimination.
The Court did stress that customary law and common law should be viewed as equal, with no superiority over one another, and all must be in line with the Constitution and its values.
It was stated that the idea of the civil marriage being superior to a customary marriage did exist, but was an outdated one from less enlightened times.
The Court first thing the Court had to determine was the validity of the ANC where it was entered into during a customary marriage but before the civil marriage, as in casu.
It seems to be neither antenuptial nor postnuptial, being before and after a marriage in each regard.
Whilst the amicus curiae argued that such is an Antenuptial Contract, as shown above, the Court held that the amicus curiae oversimplified the matter, not taking into account that the ANC sought to also regulate matters from the joint customary marriage, rather than leave it unaffected, usually to the benefit of the financially stronger spouse, and by implication prejudicing the other spouse.
In the case at hand, with the ANC specifically having each party’s estate starting at nil, and with assets not being included in the joint estate, the weaker First Defendant, is prejudiced, and as raised in her submissions, so are many other black women.
The Court further held that the Section 10 of the RCMA did not prescribe that the civil marriage as contemplated, terminated the customary marriage, or the proprietary consequences of said marriage.
The Court held rather, that Section 8 of the RCMA was clear and a customary marriage could only end by divorce, and it urgently needed to be addressed what the effect the effect of the civil marriage was on the customary marriage.
With this in mind, the Court also held that Section 10 of the RCMA was not written with intention of allowing civil marriages in the circumstances to terminate their customary predecessors.
The Court held that a civil marriage would be in community of property unless an ANC existed, something the Court considered the legislature not to have properly thought of, and needed to be addressed.
As a result, the civil marriage rather replaces the customary one, with as little disturbance and frustration at possible. With no change in marital property regime, this produces no problem.
When the matrimonial property regime changes however, the Court held that judicial oversight was required to ensure that the weaker spouse was not prejudiced.
The Court held that the parties must apply to the High Court in terms of Section 21 of the Matrimonial Property Act, for leave to change their matrimonial property regime, especially when the contract gives one of the parties the means to unilaterally control and possess any of the assets that were once a part of the customary marriage joint estate.
Additionally, the Court stated that these marriages as in case were not dual marriages in the strictest sense, given that the civil marriage replaces the customary marriage.
The Court therefore held that the ANC that attempts to transform an in community of property customary marriage into an out of community of property civil marriage will be invalid and void, and the parties should approach the Court under Section 21 of the MPA as stated above.
The Court agreed that the financially weaker spouse in a monogamous customary marriage could be prejudiced against, since those in pure civil marriages could not see their marriage affected without judicial intervention, and the weaker financially spouse was generally the woman.
This meant that prejudice did exist on the basis of sex and to a degree of race, both of which are listed grounds of discrimination in the Constitution. The Court further held that the discrimination was also unfair.
The Court found that prejudice and the unequal distribution of property referenced above often happens upon divorce with the joint estate, and it had to be determined if said assets in the estate needed to be protected by the Constitution.
In the case, the First Defendant is deprived of their rights to the assets of the joint estate by the ANC, without suitable reason in the eyes of the Court, such deprivation being unlawfully allowed by Section 10(2) of the RCMA, as a law of general application.
The Court held that regarding the contention that reading in could be used as a remedy to the issues outlined above, this proposal did seek to offer some protection to spouses in monogamous customary marriages, with the idea of ensuring that their rights and financial interests in the existing customary marriages are not disregarded when a civil marriage is later concluded.
The Court held that the proposal was sound and did not include any budgetary implications for the state, nor did it unnecessarily encroach on the terrain of the legislature.
However, the Court held that the Legislature should first be allowed an opportunity to correct the identified defect within 12 months, failing which the suggested words should automatically be read in to the Section.
The Court therefore held that the Antenuptial Contract as concluded between the parties is void, invalid and without effect.
Section 10(2) of The Recognition of Customary Marriages Act is declared to be inconsistent with Sections 9(1) and 25(1) of the Constitution and invalid, to the extent that the Section permits the conclusion of contracts that attempt to change a customary married couple’s matrimonial property regime without judicial oversight, and thereby allow the financially weaker spouse to be deprived of their rights to the joint estate.
This declaration of invalidity was suspended for 12 months to allow the Legislature to correct the defect.
Should the Legislature fail to correct the defect within this period, the words ‘existing’ and ‘customary’ will be read in to Section 10(2) of The Recognition of Customary Marriages Act as follows:”
When a marriage is concluded as contemplated in subsection (1) the marriage is in community of property and of profit and loss unless such consequences are specifically excluded in an existing antenuptial contract which regulates the matrimonial property system of their customary marriage’.
The abovementioned orders are referred to the Constitutional Court in terms of Section 172(2)(a) of the Constitution for confirmation.
More than anything, it must be remembered that a customary marriage is just as real as any civil marriage, and an ANC must be done prior to that, in order to be valid.
Signing an ANC after one’s customary marriage but before one’s civil marriage will be result in the ANC being Null and Void.
Until if and when the legislature amends the provisions of the RCMA, there are no options
What Are the Requirements for A Valid Customary Marriage?
Balancing Customary and Civil Marriages in South African Divorce and Family Law
Antenuptial Contracts South Africa
Understanding Customary Marriages – It Is Not as Straight Forward as It Seems
J.R.M v VVC and Others (25007/2022) [2024] ZAGPPHC 547 (10 June 2024)
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