Legal expert: What you need to know about customary marriages
Legal expert Dr Refiloe Maunatlala, who specialises in Customary Law, tackles some of the biggest misconceptions about customary marriages, including whether they can be superseded by a civil marriage and what couples can do if they want to change their matrimonial property regime.
As South Africa observes Heritage Month, one of the beautiful things about the country’s diverse heritage is its customary marriages, where two families come together and begin a new chapter.
Customary marriages are an important part of many South African families, with traditions and cultural practices playing an important role in bringing couples and their families together.
However, despite their significance, there are still several misconceptions surrounding customary marriages and how they are recognised under South African law.
Legal expert Dr Refiloe Maunatlala says one of the biggest misconceptions is that customary marriages have a lesser status than civil marriages.
"Owing to South Africa's colonial and apartheid history, the status of customary marriages is often misunderstood to be less than that of civil marriages," she says.
Dr Maunatlala explains that this misunderstanding can lead couples to believe that after entering into a customary marriage and fulfilling all the requirements and rituals, they can later enter into a civil marriage that will outweigh or supersede their customary marriage.
"That is why couples often erroneously conclude a customary marriage (by fulfilling all the requirements and rituals of customary marriage) under the erroneous belief that they can still conclude a civil marriage which will eventually outweigh or supersede the customary marriage,” she says.
Dr Maunatlala says customary and civil marriages are recognised as separate and equal forms of marriage under South African law.
"Customary marriages and civil marriages are recognised as separate and equal forms of marriage under the South African legal fraternity. So, if all the requirements for the conclusion of a valid customary marriage are met, the couple will be customarily married," she says.
Before entering into a customary marriage, couples need to understand how their matrimonial property regime works, notes Dr Maunatlala
She says that all types of marriages in South Africa, including customary marriages, are by default in community of property unless an antenuptial contract is concluded.
"I wish everybody understood that they have the power to take charge of how their property will be dealt with during the existence of their marriage until the dissolution of such marriage through death or divorce. This is why it is important not to wait until it's too late to equip yourself with the knowledge of different matrimonial property regimes. This knowledge is important to make an informed decision of whether you will get married in community of property or out of community of property (with or without accrual)."
Should a couple wish to be married out of community of property, they must conclude an antenuptial contract with a notary public (lawyer) before the conclusion of their marriage and have it registered at the Deeds Office within three months of signing.
She explains that the contract must be signed before all the formalities of the marriage have been completed.
She also advises couples to have an honest conversation about the type of marriage regime they want.
"If they are not sure, they should get legal advice from a lawyer. Additionally, the information on the different regimes is also available online. This should be done even before the prospective wife and husband's families meet for lobolo negotiations to avoid unintentionally concluding a marriage in community of property if that's not their desire."
Lastly, she says couples have a right to change their marriage regime at a late stage, provided they follow the right procedures.
"Couples customarily married to each other are legally allowed to change their matrimonial property regime if they wish to do so during the subsistence of their marriage. They should formally and jointly apply to the High Court for a postnuptial contract under section 21(1) of the Matrimonial Property Act. It is important to note that the couple can't enter into this contract without the involvement of the court as was recently reinforced in a landmark Constitutional Court ruling of VVC v JRM," concludes Dr Maunatlala.
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