No Valid Antenuptial Contract After Lobola
An antenuptial contract, also known as a prenuptial agreement, is a critical legal instrument for couples planning their marriage. This type of contract is designed for those who wish to opt out of a marriage in community of property, which automatically shares all assets and debts on a 50/50 basis. By concluding an antenuptial contract, couples can define the terms and conditions of their marriage, specifying which assets are to be shared and which remain separate. For couples marrying under customary law, it is essential to finalise an antenuptial contract before engaging in lobola negotiations and celebrations.
In this article, we explore the legal landscape of antenuptial contracts, focusing on the pivotal judgment in JRM v VVC and its implications for customary and civil marriages in South Africa.
Case Background: JRM v VVC
The case of JRM v VVC sheds light on the complexities of antenuptial contracts in the context of both customary and civil marriages. In this case, the couple entered into a customary marriage on 5 August 2011 without an antenuptial contract. This defaulted their marital regime to one in community of property, creating a joint estate where both partners had undivided shares. Seven years later, on 19 February 2019, the couple signed a document they referred to as an antenuptial contract. This contract stipulated that their planned civil marriage would be out of community of property and subject to the accrual system. They subsequently entered into a civil marriage on 10 June 2021. The legal challenge arose over whether an antenuptial contract signed after the customary marriage but before the civil marriage was valid.
Key Legal Provisions Recognition of Customary Marriages Act (RCMA), Section 10
Section 10 of the RCMA permits spouses in an existing customary marriage to convert their marital system by entering into a civil marriage under the Marriage Act 25 of 1961, provided neither party is involved in another existing customary marriage. According to this section, such civil marriages default to being in community of property unless specifically excluded by an antenuptial contract. However, Section 10 is silent on how the joint estate created by the initial customary marriage is impacted by the subsequent civil marriage.
The court in JRM v VVC was tasked with determining whether an antenuptial contract executed after the customary marriage but before the civil marriage could be deemed valid. Deeds Registries Act 47 of 1937 Under Section 87 of the Deeds Registries Act, a valid antenuptial contract must be:
- Executed before marriage.
- Attested by a notary public.
- Registered with a deeds registry within three months of execution (or longer with court approval).
Section 88 provides for the possibility of registering a postnuptial contract, but only if the terms were agreed upon before the marriage and with the court’s authorization.
In JRM v VVC, the couple’s contract did not meet these requirements, as they were already married in community of property.
Legal Interpretation and Court Findings
The plain language of the term “antenuptial” emphasizes that such a contract must be concluded before marriage. Once a marriage is finalized, any subsequent agreement is considered postnuptial and requires judicial approval for registration and execution. In the unreported case of LNM v MMM (case no 2020/11024, 11-6-2021), the court reinforced that postnuptial contracts can only be validated through judicial intervention. This aligns with the court’s findings in JRM v VVC, which determined that an antenuptial contract executed after a customary marriage cannot bypass this requirement.
The Implications of JRM v VVC
The judgment in JRM v VVC clarifies that: Couples who conclude a civil marriage after a customary marriage under Section 10(1) of the RCMA cannot validly execute an antenuptial contract if it was not already signed and registered prior to their customary marriage. Any agreement signed post-marriage is deemed a postnuptial contract, which requires court approval for execution and registration.
Conclusion
Antenuptial contracts are an essential tool for couples seeking to define their financial and property arrangements before marriage. This case highlights the importance of timely execution and compliance with legal requirements to ensure validity. For couples involved in customary marriages, it is crucial to understand the legal distinctions and requirements to avoid complications in their marital regime.
At Mary-Jane Mphahlele Attorneys Inc, we specialise in assisting clients with antenuptial contracts and navigating the complexities of marriage law. Contact us today for expert advice tailored to your unique circumstances.
If you require assistance, please feel free to contact my office at 015 023 0013 or 0798091300, or you can email us at info@mjmattorneys.co.za.