By Siyabonga Sibisi

Due to the past non-recognition of customary marriages, South Africans resorted to the practice of entering into both a civil and a customary marriage. This is referred to as a dual marriage. In a monogamous dual marriage, the same couple is married to each other by both civil law and by customary law. Despite the full recognition of customary marriages by the Recognition of Customary Marriages Act 120 of 1998, dual marriages are still rife in South Africa. In fact, s 10(1) of the Recognition of Customary Marriages Act permits monogamous dual marriages. A dual marriage should not be confused with a polygynous marriage where a person has various spouses at the same time. If a person decides to enter into a polygynous marriage, s 10 of the Recognition of Customary Marriages Act is also apposite. This section provides that a civil marriage cannot co-exist with a customary marriage in a polygynous setting (s 10(1) and (4)). Only a customary marriage can withstand polygyny. In other words, a polygynous dual marriage is impermissible (s 10(4)). Be that as it may, people still enter into subsequent marriages during the subsistence of a civil marriage with another person. As already noted, this is legally impermissible in terms of s 10. The effect is that the second marriage will be invalid.

This article focuses on a situation when a couple enters into a monogamous dual marriage. It deals with the impact of monogamous dual marriages on antenuptial contracts. It will open by demonstrating how dual marriages are entered into. It will then discuss the legal implications of dual marriages on antenuptial contracts. Each dual marriage is unique on its facts and the applicable principles will change depending on the facts. This article will submit that, due to procedural reasons, some existing antenuptial contracts in dual marriages may be null and void. Case law will be used to support this assertion.

Dual marriages

As noted above, a dual marriage is when African people enter into both a customary marriage and a civil marriage with each other. They may start with a civil marriage and then conclude with a customary marriage. They may also adopt a blended approach whereby a civil marriage and a customary marriage are entered into at the same time. An example of a blended approach is when a couple says marriage vows and, thereafter, perform the gifting ceremony. This blended format is attractive as it is cost effective. African people usually open the subject of marriage by negotiating and delivering ilobolo. Contrary to popular belief, mere delivery of ilobolo does not conclude a customary marriage. This marriage is not just a once-off event; it is a culmination of various events that end in the bride being integrated into her new family.

Once an agreement is reached on ilobolo, with at least partial delivery thereof, the parties are usually permitted by their families to conclude a civil marriage. Once a civil marriage has been concluded, the parties usually finalise the customary marriage by integrating the bride into the new family. The integration of the bride usually involves the bride being welcomed into the family and introducing her to the ancestors. Nothing prevents the parties from starting with the customary marriage. After this customary marriage, they enter into a civil marriage. It is common to find that customary marriage is registered; instead, they will use the civil marriage certificate. For this reason, Professor Fatima Osman refers to a dual marriage as a marriage that is celebrated in terms of customary law and registered as a civil marriage (Fatima Osman ‘The million Rand question: Does a civil marriage automatically dissolve the parties’ customary marriage?’ (2019) PER 1 at 8).

Matrimonial property in dual marriages

The general principles regarding marital property are applicable. Both a civil and a customary marriage are by default in community of property (see s 7 of the Recognition of Customary Marriages Act). Should a couple wish to exclude community of property, they must execute an antenuptial contract, in which case, their marriage will be out of community of property. The parties must decide whether they wish to include or exclude the accrual.

If the parties in a monogamous dual marriage wish to include community of property, this is the default system and problems do not arise. The problem arises if the parties in this monogamous dual marriage want to conclude an antenuptial contract. Section 87(1) of the Deeds Registries Act 47 of 1937 requires that antenuptial contracts must be registered within three months after execution. It must be entered into before the conclusion of the marriage. The problem arises where the parties start by complying with the cultural aspects of a marriage, thereby concluding a customary marriage. Often, they do not think about the impact that this has on their matrimonial property. By default, the customary marriage will be in community of property. When they agree that their civil marriage will be out of community of property, they simply execute the antenuptial contract without considering that they are already married in community of property. The question then turns on the validity of the said antenuptial contract.

The validity of antenuptial contracts in monogamous dual marriages

As stated above, when parties enter into a customary marriage, in compliance with culture, without an antenuptial contract such marriage will be in community of property. If the parties subsequently attempt to execute an antenuptial contract in view of an impending civil marriage, this antenuptial contract will be null and void because the parties are already married in terms of customary law and their marriage is in community of property. The correct procedure is to approach the High Court for an order allowing the parties to change the matrimonial property system applicable to their marriage. This procedure is set out in s 21 of the Matrimonial Property Act 88 of 1984. In order to succeed with an application of this nature, a party must satisfy the court that ‘there are sound reasons for the proposed change’ (s 21(1)(a)), that ‘sufficient notice of the proposed change has been given to all the creditors’ (s 21(1)(b)) and that ‘no other person will be prejudiced by the proposed change’ (s 21(1)(c)).

In LNM v MMM (GJ) (unreported case no 2020/11024, 11-6-2021) (Siwendu J), the court dealt with a similar issue. In this case, the parties had agreed to enter into a civil marriage out of community of property. However, being Africans, they first complied with the cultural aspects of entering into a marriage. Ilobolo was successfully negotiated, and the bride was handed to her new family. The parties started cohabiting. The customary marriage was not registered as the parties had intended that the civil marriage would regulate their matrimonial property matters. In anticipation of a civil marriage, the parties duly executed and registered an antenuptial contract. Before they could enter into a civil marriage, their relationship became sour. In an action for divorce, the court had to determine the validity of the customary marriage and the antenuptial contract. The court held that the customary marriage was valid. Since the antenuptial contract was executed and registered after the parties had already entered into the customary marriage, it was null and void. The court held that the correct procedure was that in s 21 of the Matrimonial Property Act, set out above.

Conclusion

Depending on the time when the antenuptial contract is executed and registered, such antenuptial contract may be null and void. Although in LNM v MMM the parties did not finally conclude a dual marriage, however, one was anticipated and on the cards. Because of this, the case is very important. It is certainly a guide to practitioners who deal with antenuptial contracts involving parties who adhere to customary law. Practitioners who deal with monogamous dual marriages should heed the advice in this article and follow the correct procedure in s 21 antenuptial contracts.

Siyabonga Sibisi LLB LLM (UKZN) is a legal practitioner and lecturer at the University of KwaZulu-Natal in Durban.

This article was first published in De Rebus in 2022 (Nov) DR 8.