Consequences of Entering into a Customary Marriage Without an Antenuptial Agreement

Written by Dionne Jackson

20 July 2023

Marriage is a sacred union that brings two people, bound by love, commitment, and the promise of a shared and sacred future, together. As couples embark on this journey, it is essential to consider the legal implications that come with joining lives and assets. In many cultures, customary marriage, also known as traditional or religious marriage, has been a prevailing practice.

The allure of these seemingly blissful and uncomplicated unions often causes couples to knowingly or unknowingly forgo an antenuptial agreement and set sail on a sea of legal uncertainties that could expose them to unforeseen risks or costly postnuptial agreements down the road. This article delves into the captivating world of customary marriages and the legal implications that await those who embark on the traditional marriage path without the protection of an antenuptial contract.

How Do I Know If I Am Married in Terms of Customary Law?

The customs and traditions associated with marriage can vary significantly between cultures, and they often define the roles, responsibilities, and rights of both spouses within the marital union. The requirements for a valid customary marriage are as follows:

– Lobola must be fixed and paid;

– The marriage must be negotiated and celebrated;

– The parties must consent;

– The parties must be major (18 years old);

– Neither party should be married civilly.

For more information read our article on the requirements and legal repercussions of a customary marriage, as well as our article with specific reference to the handing over of the bride requirement.

Critical to note; however, is that the absence of one requirement or another does not deem the marriage void. Thus, if lobola has been paid and the marriage is not celebrated, the marriage is prima facie (true, valid, based on first impression) deemed legal and enforceable.

I Am Married Customarily; Can I Still Have an Antenuptial Agreement Drawn Up?

A common misconception is that customary marriage results in an engagement. Seeing as the registration of marriage is not a prerequisite for a customary marriage to be deemed valid, couples often fail to register their marriage at Home Affairs on time, if at all. Unfortunately, in customary law, marriage automatically establishes a default in community of property regime, whereby all assets and debts acquired during the marriage are deemed jointly owned by both spouses.

This means that if a couple fails to draft and execute an antenuptial agreement before the payment of lobola, individual assets brought into the marriage and those accumulated during the union become communal property, subject to specific customary law principles.

Although a party has the option to lodge an application for a post-nuptial agreement, in this case, prevention is undoubtedly better than cure. Read our article regarding the importance of having an antenuptial agreement in South Africa.

What Does It Mean To be Married in Community of Property?

Marriage in community of property is a matrimonial property regime that governs the ownership and management of assets acquired during the marriage. It entails the following:

Commencement: The regime typically commences on the date of the marriage and ends with a divorce decree being granted, the death of one spouse, or if the couple chooses to change their property regime through a legal process called a post-nuptial agreement.

Joint Estate: All assets and liabilities acquired by either spouse during the marriage become part of a joint estate or community.

Equal Ownership: Both spouses share equal ownership of all property acquired during the marriage, regardless of who acquired or financed it, causing the name displayed on the title deed to be deemed irrelevant.

Equal Sharing of Debts: Debts incurred during the marriage by either spouse will be shared equally between them.

Exceptions: Some assets may be excluded from the joint estate, such as inheritances or gifts explicitly designated for one spouse only.

Management: Both spouses have equal management rights over the assets in the joint estate; however, key decisions, such as the alienation of assets, require written consent from both parties.

Financial Implications: In the event of divorce or separation, the joint estate will be divided equally between the spouses, which may have a severe impact on the financial position of each party.

Liabilities: Both spouses are equally responsible for any debts incurred during the marriage, regardless of the party that incurred the debts.

I Am Married Customarily, But I want to Change My Marital regime. How Do I Do This?

Luckily, couples have the option to alter their marriage regime, by way of a post-nuptial agreement. This procedure involves a joint application to the High Court to grant, sign, or register the post-nuptial agreement. In order for the parties to change their marital regime, Section 21 of the Matrimonial Property Act 88 of 1984 requires the following:

– There should be plausible reasons for the proposed change.

– Adequate notice must be given to the parties’ creditors and the Registrar of Deeds.

– The relevant court must be sufficiently convinced that no other person will be prejudiced by the change.

If the respective spouses do not have any judgements or pending legal actions and are not considered to be insolvent, the courts may grant the application. Should this not be the case, the creditors may object to the application, and the court may refuse to grant the application.

The procedure for getting a post-nuptial agreement in place is more expensive than drafting and executing an antenuptial agreement timeously. Clients are therefore always advised to explore marital regimes before lobola negotiations so that they can make an informed decision and decide whether they want to have an antenuptial agreement drawn up. Couples that embark on the journey of customary marriage without an antenuptial agreement will likely find that the path towards postnuptial agreements is financially burdensome and emotionally taxing.

Read our article for additional information on how to register a postnuptial agreement after the date of marriage.

Safeguard your future with an Antenuptial Agreement

While tradition and culture play a significant role in guiding our decisions, it is essential to embrace the practicality of safeguarding our future with an antenuptial agreement. The high costs associated with postnuptial agreements are a stark reminder that love alone may not suffice when navigating the complex waters of asset division and financial responsibilities. Choosing the path less travelled and proactively seeking legal protection through an antenuptial agreement can pave the way for a smoother journey ahead.

Contact Burger Huyser Attorneys’s antenuptial specialists today if you need to change your marital regime or find out more about the process of drafting an antenuptial contract with us!

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE