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Previously, marriage was defined as a legal union between one man and one woman as husband and wife. With the recognition of same sex marriages and the promulgation of the Civil Unions Act, marriage is now defined as a legal union between two spouses. The Marriages Act is obviously two decades behind because heteronormative terms have no place in legislation in a society that promotes and recognises equality.

There is constant debate on whether marriage is a status or a contract. The elements of a valid contract are: offer, acceptance, consideration, capacity, and legality. Similarly, the basic elements of a marriage are: capacity to marry, mutual consent of the parties and legality of the marriage contract as obligated by law.

Historically, marriage represented a fundamental ordering structure of society in a social and legal sense, while simultaneously possessing great economic relevance. Significant shares of fortunes were managed, enlarged and passed on in contexts relating to marriage. Dynasties and kingdoms were formed and strengthened through marriage.

The origin, nature and purpose of a marriage lies beyond and beneath the terms of the marriage contract itself. Common law, classical and Christian traditions and its parallels in Judaism, Islam and African customary law essentially teach that a marriage is a legal contract (ketubah, pactum or kitab) but also a sanctified covenant with social, economic, cultural, communicative and spiritual dimensions with gender specific implications. A marriage cannot simply be classified as a contract because some aspects of a marriage are ineradicably different from ordinary contracts. Marriage provides an exogenous payoff to married spouses and serves as a commitment and signalling device (the old ball and chain). The marital covenant is simultaneously private, public, individual, social, civil, religious, temporal and transcendent.  A marriage is therefore a contract with fragmented elements of status.

With its notions of piety, devotion and blessedness, four questions have always been answered upon the conclusion of a marriage: the resources to be transferred, the agreements the spouses reach in respect of their rights and obligations in the marriage, the management of wealth and resources during the marriage and the arrangements pertaining to the divorce, separation and death of the spouses.

In most jurisdictions, marriages generally take one of the following three regimes: marriage in community of property (tie a noose around your neck and jump off a cliff expeditiously), marriage out of community of property without accrual and marriage out of property with accrual.

Marriage out of community of property entails that: the spouses retain the assets acquired before and during the subsistence of the marriage and are responsible for their own liabilities. Neither spouse is entitled to share in the other’s assets. As far as finances are concerned, this marital regime equates the couple to unmarried persons.

Marriage out of community of property with accrual entails that: the spouses retain their assets acquired before and during the subsistence of the marriage and are personally liable for their debts and liabilities. Upon dissolution of the marriage through death or divorce, the net values of the separate estates are calculated separately, and the larger estate must compensate the smaller estate with half of the difference. This is a beneficial option for spouses who foresee a potential difference in their earning capabilities. The system takes cognisance of the fact that during a marriage, spouses contribute to each other’s growth.

Marriage in community of property entails that: the spouses are and jointly and severally liable in solidum for all debts incurred during and before the marriage; the spouses are co-owners of all the property separately acquired before and that which was acquired during the marriage; if either spouse inherits property, that inheritance also forms part of the joint estate save for instances where the testator explicitly states that the inheritance should not form part of the joint estate; the spouses cannot alienate or purchase property without each other’s consent; and upon dissolution through divorce or death, the joint estate is divided in equal shares.  

The default marital regime in South Africa is in community of property. While many jurisdictions have eradicated this default setting, the rationale behind marriages in community property is not unfounded. The aim was to prevent the automatic disenfranchisement of women upon the dissolution of the marriage. It is meant to enable either spouse to share in the benefits and joys of the marriage. Evidently, the inverse is true because a marriage in community of property creates more personal burdens than bliss.

While the default marital regime is marriage in community of property, couples may elect to conclude an antenuptial contract (ANC/prenup) to enter marriage either out of community with accrual or without accrual.

Neocolonialism has seeped its way into the celebration of marriages in Africa and couples now have more than three parts in the marriage celebrations inclusive of: the lobola, the registry signing and the white wedding or church ceremony. In the excitement of the wedding fever and the planning, couples seemingly forget that all three parts have legal consequences and are recognised as legal marriages. The question becomes: when should couples who intend on protecting their separate interests and protecting each other by marrying out of community of property conclude the antenuptial contract?

Section 3 of the Recognition of Customary Marriages Act prescribes the following requirements for a customary marriage to be valid: both parties to the marriage must be 18 years or older, both parties must consent to be married to each other by customary rites and that consent need not be in writing and the marriage must be negotiated and entered into or celebrated in accordance with customary law.

In Rasello v Chali In re Chali v Rasello, the court held that the third requirement entails examining whether the customs, traditions or rituals that have to be observed in the negotiations and celebration of customary marriages, have been complied with. These include the negotiations leading to the provision of lobola, its actual provision and the “handing over” of the bride to the bridegroom’s family or the bridegroom himself as well as any other tradition, custom or ritual associated with these.

The payment of lobola itself is not a requirement for a valid customary marriage but it falls under the provision that the marriage must be negotiated, entered and celebrated in accordance with African customary law. Both customary and civil marriage contracted by black indigenous African people are preceded by lobola negotiations and dual marriages are a common practice. The handing over of the bride to the bridegroom’s family is a particularly important requirement without which a valid customary marriage cannot exist. It can be inferred that in Christian homes where the subscribed belief is that the bride is not handed over to the groom’s family until the celebration of the white or church wedding, the customary rites remain in limbo and the marriage rites under customary law is “delayed” until the handover ceremony is concluded.

In the case of a subsequent customary marriage — a second or further customary marriage — the consent of the spouse of the existing customary marriage is a requirement for the validity of this second marriage.

Section 7 of the Recognition of Customary Marriages Act provides that a monogamous customary marriage is in community of property, with profit and loss, unless these consequences are explicitly excluded by an antenuptial contract. It is immaterial that during the courtship, the parties intended on concluding an antenuptial contract to marry out of community of property. As soon as the marriage rites are completed in terms of customary law, the parties are automatically married in community of property.

Section 10 of the Recognition of Customary Marriages Act provides that parties married under customary law are competent to contract a marriage with each other under the Marriage Act if neither of them is a spouse in a subsisting customary marriage with any other person. From this section, the important question becomes whether the new civil marriage terminates the customary marriage. During the promulgation of the Recognition of Customary Marriages Act, the Law Commission was of the view that dual marriages create legal difficulties and are undesirable. This was evidenced in Mandela v Executors Estate Late Nelson Rolihlahla Mandela when Winnie Madikizela-Mandela alleged that her 1996 civil marriage divorce did not dissolve her customary marriage to the late Mandela.

The Law Commission recommended that one form of marriage be given precedence over the other. This recommendation aligns with the interpretation that the civil marriage terminates the customary marriage, as opposed to the marriage continuing in two different forms. This affords greater protection for women as civil marriages are monogamous. This is also in line with the Muslim Marriages Bill which provides that parties married under Muslim rites may not enter into a subsequent civil marriage.

The mere fact that a civil marriage terminates a customary marriage reinforces historical prejudices against customary marriages and defeats the purpose of recognising customary marriages as legal marriages. Section 8 of the Recognition of Customary Marriages Act provides that a customary marriage may be dissolved only by an order of court and allowing the civil marriage to supersede the customary law marriage effectively provides an alternative means to terminate the customary marriage and circumvents section 8. Although this argument may hold water, the practical position in law is that a civil marriage supersedes a customary marriage.

The fact that a civil marriage replaces the customary marriage has no bearing on the requirements for concluding an antenuptial contract. The conclusion of customary marriage rites through the lobola celebrations is not a process in the road to a civil marriage or an engagement pending a white wedding. The customary marriage once concluded subsists until the conclusion of the civil marriage. The clock on the antenuptial contract does not run de novo.

The married couple cannot simply lodge a new antenuptial contract to go with the new flavour of their wedding without a court application to change their marital regime. This stance is harsh and may prejudice couples who genuinely intended on marrying out of community of property, especially in instances when couples conclude the customary rites and the civil rites within weeks of each other. But the main purpose of applying to court for an order to change the marital regime is to protect the interests of third parties who might have contracted with the couple as persons married in community of property. Most couples leave a year’s gap to allow for careful planning between the two ceremonies. It should be appreciated that at that point, condonation is simply untenable.

The ambiguity created by the Recognition of Customary Marriages Act is in serious need of rectification. While the legislative body and the courts of law attend to that, it is important to conclude and sign the antenuptial contract as soon as possible after the marriage proposal and before any lobola negotiations. Couples must endeavour to contract the services of a lawyer the same way they arrange the florist, the caterer and the DJ in lieu of the marriage festivities.  

Conceptualising an antenuptial contract is unsettling for many because of the negative connotation that a prenup is a preparation for an inevitable divorce before the ink even meets the paper. Perhaps the most compelling argument for a prenup should simply be that, at the engagement point in the relationship, when the hearts are most open and still basking in the glow of the promise of forever, parties should agree on how they will treat each other, during and after the subsistence of the marriage.

The idea of an antenuptial contract should not be met with so much negativity when humanity’s existence is founded on contracts. We are constantly clicking “accept” on terms and conditions and tacitly accepting them with every purchase and interaction. A marriage is a contract and should be treated as a contract, bearing in mind that a standard marriage contract does not exist. The best prenup is made to suit the needs and wishes of the parties. Marriage contracts can deal with discreet and all-encompassing matters such as: the disposition of a professional practice, ownership and division of property, separation, divorce, support obligations for spouses, death, right to education and moral training of children and rights, duties and obligations during the marriage contract.  

A prenup does not prevent pain with regards to matters of the heart but it prevents misery, especially that can emanate from finances. There are certain aspects an antenuptial contract cannot accomplish and regulate, for example the custody, care, support and access of children upon divorce. The high court is the custodian of minor children and given the fallibility of human nurture, spouses cannot preempt the best interests of their children before the marriage.Couples who married in community of property via ooops or because of ignorance have the option of applying to the high court to change their marital regime and conclude a subsequent post nuptial contract. This application is similar to a liquidation application and is a fairly expensive remedy for financial peace. It is a huge responsibility to manage one’s own profligate misdemeanors and it is reckless endangerment to undertake responsibility for another person’s immoderate and impudent spending. The insurmountable undertaking “to have and to hold, in sickness and in health, till death do us part” should be regulated by a contract. Love and devotion have never kept anyone out of unwarranted insolvency.

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  • Lilleonah Chivenge is a candidate attorney and holds a master of laws degree from the University of KwaZulu-Natal. She is also an author and a community legal educator

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Lilleonah Chivenge

Lilleonah Chivenge is a candidate attorney and holds a master of laws degree from the University of KwaZulu-Natal. She is also an author and a community legal educator

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