Page 98 - Q&A 2019/2020

Why an antenuptial agreement may be
important when getting married in terms of
customary law

Corlia van Zyl
January 2019
“I am getting married this year in terms of customary law. My fiancé and I
are both professional persons and want to be married out of community of
property so we can each manage our own estates. How can we go about
doing this?”

Today, the conclusion of a customary marriage is governed by the Recognition
of Customary Marriages Act 120 of 1998 (“RCMA”) read together with the
Matrimonial Property Act 88 of 1984 (“MPA”). For a customary marriage to be
valid, the parties must be older than 18 years and must consent to be married
under customary law. Furthermore, the marriage must be negotiated and
entered into or celebrated in accordance with customary law. This means that
all the rituals and traditions of concluding a marriage in terms of a specific
culture amongst indigenous South Africans must be complied with.
If the abovementioned requirements have been met a valid customary
marriage exists and the marriage should be registered at the Department of
Home Affairs within three months of concluding the marriage.

A customary marriage is by default treated as a marriage in community of
property, except if the consequences of a marriage in community of property
are specifically excluded by way of an antenuptial agreement between the
parties. This means that parties entering into a customary marriage are allowed
to conclude an antenuptial agreement, provided such complies with the
requirements of the MPA and the Deeds Registries Act 47 of 1937.

For an antenuptial agreement to be valid it must therefore be signed before
a notary and registered in the Deeds Office to be enforceable. The signing of
the antenuptial agreement must also take place before the date of marriage.
Therefore, for a customary marriage to be recognised as a marriage out of
community of property, the parties must execute the antenuptial agreement
before the conclusion of the customary marriage, in other words, before the
parties proceed with the rituals and tradition of concluding the marriage.

If you are intending to conclude a customary marriage and wish to be
married out of community of property, it is therefore important that you consult
your attorney to assist you in having an antenuptial contract drawn up and
signed before you proceed with the customary marriage to ensure that the Family
consequences of your marriage will be out of community of property.

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