Customary Marriages Automatically In Community of Property, ConCourt Rules
The Constitutional Court has ruled that couples married under customary law cannot sign antenuptial contracts (ANCs) after their marriage to alter their matrimonial property regime unless they first obtain approval from the High Court.
The judgment confirms that a valid customary marriage is automatically regarded as being in community of property, unless an antenuptial contract is concluded before the marriage is legally finalised.
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Post-marriage contracts declared invalid without court approval
According to the ruling, any ANC signed after a customary marriage — even if done before a later civil ceremony — is treated as a postnuptial contract. Such agreements have no legal effect unless a court authorises the change.
The court stressed that spouses cannot unilaterally strip one another of rights that have already accrued to a joint estate through agreements concluded after the marriage has begun.
Protection for financially vulnerable spouses
The ruling is intended to safeguard spouses, particularly women and economically disadvantaged partners, from being pressured into unfair property arrangements after marriage.
Previously, provisions in the Recognition of Customary Marriages Act allowed a husband to alter the matrimonial property system through a written agreement. This practice often resulted in one spouse losing rights to a jointly owned estate without proper oversight.
The Constitutional Court found this to be inconsistent with constitutional protections and the principle of equality in marriage.
Section of marriage law declared unconstitutional
The decision follows a High Court ruling that declared part of the Recognition of Customary Marriages Act unconstitutional. The Act was originally enacted to ensure that women in customary marriages enjoy the same legal status and protection as those married under civil law.
By upholding the High Court’s decision, the Constitutional Court has reinforced the legal standing of customary marriages and closed a loophole that undermined spousal property rights.
Implications for future marriages
Legal experts say the judgment will have far-reaching implications for couples planning marriages that combine customary and civil elements. They emphasise that couples who wish to exclude community of property must ensure that an antenuptial contract is signed before the customary marriage is concluded.
The ruling has been widely welcomed as a victory for customary marriages and a significant step toward protecting marital equality under South African law.
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The post Customary Marriages Automatically In Community of Property, ConCourt Rules appeared first on iHarare News.
