If customary law marriage comes first, no civil marriage allowed later

A new Constitutional Court judgment about the validity of customary and civil marriages has huge implications. An untold number of Black couples, married under customary law and later under civil law, are suddenly finding that, in the wake of this judgment, their rights are not protected in the way they had assumed. Now they must face a new reality – their civil marriage isn’t valid and their customary marriage, along with the often-unwritten marital property contract that goes with it, is the one that counts in the eyes of the law.

Read the judgment here:https://www.saflii.org/za/cases/ZACC/2026/2.html The story behind this judgment can be told in a couple of sentences: Two people get married to each other twice, first in terms of customary law and later in terms of civil law. Then one of the spouses wants a divorce and the other heads to court claiming that the second marriage isn’t valid. The dispute ends up at the Constitutional Court, where the judges are effectively asked to decide which of the two marriages and their associated contracts, is valid.

We unpack it below, but one thing the decision makes very clear is this: the days of rushing into marriage, whether customary or civil, or even beginning lobolo discussions, without first considering and resolving the legal implications, are now completely gone. Following this judgment, it’s more important than ever that anyone getting married, whether in a traditional ceremony, at the magistrate’s court or in church, should consult an attorney to help explain the options and draft a legally binding agreement that will suit the couple’s particular circumstances. Your future financial happiness and security could well depend on that advice.

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Now, let’s consider in a bit more detail the facts of the case heard by the Constitutional Court. A couple (named just VVC and JRM to protect their identities) married each other under customary law in August 2011. This marriage was in community of property.

In other words, all the assets (and all the debts) of both spouses were merged into one and both were equally responsible for all the debts, present and future, that might be incurred by either of them. (It’s important to note here that any customary law marriage will automatically be in community of property, unless the couple makes other arrangements well before the wedding and even before lobolo discussions begin.) Fast forward eight years in the lives of VVC and JRM. It’s 2019 and now the couple decide to get married again, this time under civil law.

As part of this process, they sign an antenuptial contract (ANC) under the Recognition Act. This contract completely changes how their marital estate will work: under the ANC that they sign for this wedding, their marriage will be out of community of property and subject to the accrual system. It’s important to understand that, in making these arrangements, they don’t do anything about first undoing the community of property contract created by their initial marriage.

Their new ANC contract – out of community of property and subject to accrual – might suit many couples. It’s quite different from the contract of their first marriage. Now their assets aren’t pooled.

Instead, each keeps control of the assets they bring into the marriage. Each is responsible for the debts they incur, with no responsibility for the debts of the other. And the ‘accrual’ arrangement means that, at the end of the marriage, whether by death or divorce, the one whose estate has made the smaller gain is entitled to half the difference between what their estate gained and what their partner’s estate gained.

But then trouble strikes. Not long after their civil marriage, VVC asks for a divorce. This would require their marital estate to be settled and divided as they agreed via the ANC they signed at the time of their second wedding. But the other spouse, JRM, objects.

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