“Even before the lobola is paid, an antenuptial contract should be drafted,” said independent legal expert attorney Mpumelelo Zikalala. This is following the Constitutional Court ruling that antenuptial contracts signed after a customary marriage are invalid, unless they are approved by a court in terms of the Matrimonial Property Act. Zikalala said this ruling is a wake-up call, particularly for black couples.
The apex court declined to confirm a high court order that had declared section 10(2) of the Recognition of Customary Marriages Act unconstitutional. However, it made clear that couples cannot change their matrimonial property regime after a customary marriage through private agreement alone. Before people even begin the customary marriage process, they should consult a lawyer to discuss and agree on which matrimonial property regime they will choose.
Couples who decide to marry under customary law should commit to that process fully. Starting customary processes and not following through undermines the customs themselves. He added that the judgment offers important protection for women, especially in polygamous contexts.
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“A man cannot perform certain customary rituals or alter agreements without the woman’s knowledge or consent. This judgment strengthens protections against that kind of abuse.” The case arose from a divorce dispute between a couple identified as VVC and JRM, who were married under customary law in 2011.
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