Many individuals wonder if, after entering a customary marriage, they can still draw up an antenuptial agreement. There’s a frequent misunderstanding that customary marriage is merely an engagement. Given that the formal registration isn’t always executed timely (or at all) at Home Affairs, it leads to a misconception about the legal standing of the marriage.
In the realm of customary law, a marriage defaults to being in community of property. In this setting, without an antenuptial contract, both spouses jointly own all assets and debts accrued during the marriage. If couples neglect to formulate an antenuptial agreement prior to lobola payment, all individual assets, both pre-existing and acquired during the marriage, evolve into shared communal property governed by certain customary law norms.
There is an option for couples to apply for a post-nuptial agreement after the fact. However, when considering customary marriage and out of community of property, being proactive and securing an antenuptial contract beforehand is undeniably a wiser approach. Prevention, in this context, is indeed the best strategy.
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