South Africa’s marriage systems are as varied as our cultures.

This has been recognised by our courts and the legislature, particularly in terms of the Recognition of Customary Marriages Act 120 of 1998.

Subject to complying with the following, Customary Marriages are recognised as valid and legal and subject to Inheritance and Divorce Laws :

1.The marriage must be negotiated, entered into or celebrated in accordance with customary law. This means that the marriage must be entered into in line with the traditions and customs of the parties.

2.The parties who are getting married must be 18 years or older. If one or more of the parties are minors (below the age of 18 years), both his/her parents or legal guardian must give consent to the marriage.

3.The parties must also be competent to marry each other, meaning that they must not be blood relatives. For example, a brother and sister are not allowed to marry each other.

4.Both parties’ consent is required for the marriage to be valid. A person who cannot give consent, such as a mentally insane person, will not be able to get married.

5.The marriage must be lawful.

  • The payment of lobolo is not a specific requirement in terms of the Act, but it is considered to be part of practice when concluding a customary marriage.
  • There is a duty on parties in a customary marriage to register the marriage within three months after the conclusion of the marriage at the Department of Home Affairs.
  • If the registering officer is satisfied that a valid customary marriage has come into existence, the customary marriage will be registered and the parties will be provided with a registration certificate.
  • This registration certificate will be proof of the existence of the customary marriage and may avoid disputes that might occur in the future.
  • The Act allows a person to have more than one marriage with different persons at the same time (polygamous marriages). Polygamous marriages can only be legal if all the marriages are customary marriages. A person is not allowed to have a customary marriage and a civil marriage at the same time with different parties; however, a couple who is married with each other in terms of customary law, may enter into a civil marriage with each other as well.

For any advice on your marital regime or the consequences of marriage please contact our offices on 031 003 0630 or email Liza@schwenninc.co.za.

 

If you want to protect yourself and your spouse after marriage, you will need an antenuptial contract (ANC). Also known as a prenuptial agreement, this type of contract is often misunderstood by those who think it is about protecting assets in a divorce. In reality, this could easily be one of the most important contracts that you will sign as a married couple. Essentially, the ANC ensures that you and your partner are financially protected even after death.

The antenuptial contract allows married couples to personalise their own matrimonial property regime. Any provisions can be included, provided the provisions are legal, moral and not against the nature of marriage. This document is typically finalised before marriage. There are two types of ANC – one that excludes community of property, profit, loss and the accrual system, and one that excluded community of profit and loss while including the accrual system.

A good lawyer who has experience in executing ANC cases is essential. Understanding the process of seeking an antenuptial contract in 2018 is also important.

Why Do You Need an Antenuptial Contract in 2018?

Things you should know about obtaining a potential antenuptial contract include the following:

  1. Although many people assume that this contract is a way of preparing for divorce, it is not at all about assuming the worst. In reality, this contract is a way to protect both your assets as well as your partner’s assets in the event that one of you is no longer around.

 

  1. Without this type of contract, you will be automatically married in community of property. While this may seem like it gives you the power, it puts you at far greater risk than you may realise.

 

  1. With an antenuptial contract, you will essentially be married out of community of property, with or without accrual. What this means is that you will get to keep your separate assets. You can then deal with your assets according to your own choices, without the risk of losing everything in the event of divorce or death of your spouse or by creditors claims. Although you are entitled only to what you have brought into the marriage, you and your spouse are able to share what you have developed as a couple.

 

  1. Antenuptial agreements are an essential way to ensure that you and your husband or wife are seen as separate entities. If your spouse has any debt, this will protect you from creditors, without the risk of taking on debt. If you have an accrual system, you will only be able to claim your share of a joint estate after a divorce or the death of a spouse.

 

  1. To set up your antenuptial agreement, you will need a highly skilled lawyer in Durban and surrounds or a correspondent in your area who is able to draw up a contract that protects you and your spouse. Your lawyer will need to be a registered notary who is neutral and able to mediate. As a legally binding contract, you will not be able to ignore it, unless you are divorced or your spouse passes away. If you were married in community of property, you can, however, convert to an antenuptial agreement after getting married, even if it costs a fair amount.

Contact Schwenn Incorporated today to find out more about seeking help with your antenuptial contract in KZN.