JRM v VVC and Others (GP) (unreported case no 25007/2022, 10-6-2024) (Marumoagae AJ)An antenuptial contract in its literal meaning, is a marriage contract that is entered into by a couple before getting married and is concluded when that couple do not wish to get married in community of property and share their assets and debts on a 50/50 basis. In such a contract, the couple will record the terms and conditions of their marriage, specifying which assets they wish to share and which they intend to keep separate. For couples who wish to get married in terms of customary law, an antenuptial contract should be concluded before lobola negotiations and celebrations. In this article, I look at the position prior to the judgment in the JRM v VVC case and how the status quo is going to be altered by this judgment.
The couple in this case entered into a customary marriage on 5 August 2011 without concluding an antenuptial contract. This meant that their marriage was in community of property and both automatically acquired undivided shares in their now ‘joint estate’. Seven years later, on 19 February 2019, the couple signed a purported ‘antenuptial contract’ which provided that the civil marriage they agreed to enter into, seemingly at a later stage, would be out of community of property subject to the accrual system. On 10 June 2021, the couple finally entered into a civil marriage.
Section 10 of the RCMA allows a husband and wife in an existing customary marriage to change their marital system and enter into a marriage under the Marriage Act 25 of 1961, thus a civil marriage, as long as neither of them is a party to any other existing customary marriage. This section further stipulates that such a marriage will be in community of property and of profit and loss unless such community is specifically excluded by an antenuptial contract. Section 10 is silent as to what happens to the ‘joint estate’ that was automatically created by the customary marriage, which seems to have been ‘dissolved’ by the subsequent civil marriage. In the present case, the court had to decide whether the antenuptial contract entered into after the conclusion of the customary marriage but before the civil marriage was valid or invalid.
This section appears to have been an override of the requirements of a valid antenuptial contract since it allowed spouses who were already married to enter into an antenuptial contract, even when the name of the contract itself, given its plain interpretation, clearly directs that the act of entering into such a contract must be done ‘before’. The rules of interpretation of statutes direct that when statutes or legislation fail to provide a clear and precise meaning, words must be interpreted in their plain and ordinary language. Perhaps this is one of the approaches that should be adopted when courts are called to decide on the validity of antenuptial contracts.
An antenuptial contract must be concluded before the intending spouses enter into any form of marriage, hence the wording in the contract itself: ‘Whereas the intended spouses … .’ This means that once such a contract is entered into and concluded after the marriage, it ceases to be an antenuptial contract but a postnuptial contract. For an antenuptial contract to be valid not only between the spouses but against third parties, s 87 of the Deeds Registries Act 47 of 1937 states that ‘an antenuptial contract executed in the Republic shall be attested by a notary and shall be registered in a deeds registry within three months after the date of its execution or within such extended period as the court may on application allow’, if an application for such an extension is brought by the intended spouses. The section further provides that such contract if executed outside South Africa shall be registered in the deed’s registry within six months after the date of its execution or within such extended period. The plaintiff and the first defendant in this case failed to utilise and comply with the first leg since their agreement was entered into after the conclusion of their first customary marriage.
Section 88 of the Deeds Registries Act provides for postnuptial execution of an antenuptial contract, it provides that ‘the court may, subject to such conditions as it may deem desirable, authorise postnuptial execution of a notarial contract having the effect of an antenuptial contract, if the terms thereof were agreed upon between the intended spouses before the marriage, and may order the registration, within a specified period, of any contract so executed.’ The contract between the plaintiff and the first defendant failed even on the second leg because the parties were no longer ‘intended spouses’, but they were already spouses legally married in community of property to each other. In LNM v MMM (GJ) (unreported case no 2020/11024, 11-6-2021) (Siwendu J), the court stated that the only pathway to the registration of a postnuptial contract after the conclusion of a marriage is with the leave of court and that the court must sanction both the execution and the registration thereof. This means that an antenuptial contract executed and not registered before marriage can be registered only with the approval or leave of the court on application.
Where spouses conclude a civil marriage after being married in terms of customary law under s 10(1) of the RMCA, such spouses may not enter into and conclude an antenuptial contract, which was not already executed and registered prior to the conclusion of their customary marriage. Otherwise, such a contract becomes a postnuptial contract which requires judicial intervention.
Mulalo Tshililo LLB (Univen) is a legal practitioner and notary at Letsoalo and Associates Inc in Polokwane.
This article was first published in De Rebus in 2024 (October) DR 42.
