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Marriage and Matrimonial Property
A recent ruling by the Johannesburg High Court has reaffirmed that customary marriage in South Africa is not exempt from legal safeguards — especially when it comes to polygamy. In a case brought by a first wife, the court declared her husband’s second customary marriage invalid on the grounds that he had not obtained her consent, as required by law.
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The proposed legislation aims to introduce changes to several existing laws that govern divorce in South Africa, starting with key revisions to the Divorce Act of 1979. These amendments are designed to align with updates made to the Mediation in Certain Divorce Matters Act of 1987, particularly in addressing how financial redistribution is handled after a decree of divorce.
An antenuptial contract is a legal agreement signed by two people before they get married. In South Africa, it serves to change the default legal consequences that would otherwise apply to their marriage under the Marriage Act and Matrimonial Property Act.
Many couples are unaware that the Matrimonial Property Act imposes strict conditions on transactions like suretyships. While spouses generally enjoy equal powers to manage the estate, certain acts—especially those that involve binding the estate to another party’s debts—require formal consent.
Without official registration, a customary marriage may be difficult to prove in legal matters. This becomes especially important in cases of inheritance disputes, divorce, or financial claims, where a spouse may need to show legal proof of marriage to secure their rights.
Before assuming that customary traditions alone dictate property ownership, it’s important to know how South African law actually governs these marriages—and what steps can be taken to safeguard your rights.
For generations, customary marriages have been central to family traditions and community structures in South Africa. But while these unions hold deep cultural and historical significance, they also carry real legal consequences—ones that many couples don’t fully understand until it’s too late.
In South Africa, the default system is marriage in community of property, unless a couple signs an antenuptial contract before the wedding. While this system offers benefits such as shared ownership of assets, it also comes with risks, particularly regarding debt liability and financial independence.
While civil marriages automatically allow for the signing of an antenuptial contract, the rules governing customary unions are more complex. A common question that arises is: "Can an antenuptial contract be signed after a customary marriage?" The short answer is no—unless court approval is obtained.
Whether you enter a civil marriage, customary marriage, or civil union as a same-sex couple, the type of marital contract you choose will directly impact your ability to apply for a home loan, purchase property, or sell real estate in the future.
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