Validity of Antenuptial Contracts Subsequent to Customary Marriage

Section 10 of the Recognition of Customary Marriages Act 120 of 1998 allows parties, who have entered into a customary marriage, to “convert” such marriage into a civil marriage, governed by the Marriage Act of 1961. Such “converted marriage” remains a marriage in community of property and cannot be converted into one of out of community of property by the mere entering into of an antenuptial contract, prior to the solemnization of the “conversion” before a marriage officer. Where parties are desirous to change their matrimonial property regime, from in community of property to out of community of property, they must jointly approach the High Court for an order in terms of Section 21 of the Matrimonial Property Act 88 of 1984 to effect such change.

The misconception as to whether a marriage is one of in or out of community of property can have dire consequences on property transactions, and it is thus incumbent on all practitioners to ensure that they, by way of an affidavit or otherwise, confirm that NO customary marriage was entered into prior to the entering into of the antenuptial contract.

ALLEN WEST
TONKIN CLACEY (PTA)
Tel 012 346 1278