What is the effect of a marriage contract when an African couple marry traditionally and then has a civil ceremony?

In South Africa, African couples often have a dual marriage – they have a customary wedding ceremony followed later by a white wedding in front of a marriage officer. It is a  marriage celebrated in terms of customary law and registered as a civil marriage.

Couples approach me before their civil marriage to help them with an antenuptial contract (ANC). As it may be too late to conclude an ANC, I always ask them if they are not already married. The typical response is that they are not married as they have not yet registered at Home Affairs.

The Recognition of Customary Marriages Act 120 of 1998 allows for monogamous dual marriages. Typically, an African couple begins by negotiating and delivering ilobolo. They will not be formally married until they conclude the final traditional ceremony of their particular culture. For example, after a culmination of various events, the family integrates the bride into her new family. If all the customary formalities are complied with, the parties are then married. Registration at Home Affairs is not a requirement to validate the marriage.

In South Africa, the default matrimonial property regime is one in community of property. If a couple wants to be married out of community of property, they must conclude the ANC before they get married.

If a couple marries according to custom, they can certainly perform a later civil marriage, but any ANC concluded after the customary marriage would be invalid.

In that case, the couple must approach the High Court for an order allowing them to change the matrimonial property system applicable to their marriage. S 21 of the Matrimonial Property Act 88 of 1984 sets out the requirements. They must satisfy the court that there are sound reasons for the proposed change and that the alteration will prejudice no one.

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