DBM Attorneys: The overlap between customary marriages and civil marriages

Question: My husband and I are divorcing. We had entered into an ante-nuptial contract (ANC) but later concluded a valid customary marriage. Which Matrimonial Property Regime is applicable to our marriage?

Luyanda Mbatha answers:

In the 2023 case, the Supreme Court of Appeal addressed issues concerning customary marriage. The wife sought a declaration that she and the appellant were married under customary law and in community of property, challenging the validity of their ante-nuptial contract (ANC).

However, the husband disputed consenting to a customary marriage and insisted on a civil marriage with an ANC.

The court emphasised the requirement of explicit consent for a customary marriage to be valid and highlighted the difficulty of resolving factual disputes in such cases.

It stressed the importance of expert evidence to clarify cultural practices and legal requirements.

The judgment underscored the need for courts to exercise discretion judiciously, particularly in granting declaratory relief, and criticized the use of motion proceedings when unresolved factual disputes exist.

The case serves as a reminder of the complexities surrounding customary marriage and the importance of careful legal analysis and procedural considerations in resolving such disputes.

Therefore, individuals involved in similar matters should seek expert legal advice, consider procedural options carefully, and be prepared for thorough examination of facts in court proceedings such as discussions held between the parties and when the ANC and customary marriage was entered into.

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