Can we have an Antenuptial Contract if we get married under Customary Law?
Yes, you can!
And this means having the best of both worlds…
CAN WE ENTER INTO A CUSTOMARY MARRIAGE AND A CIVIL MARRIAGE?
Yes - you can be married in both!
The Recognition of Customary Marriages Act allows spouses in a monogamous customary marriage, who are not married to any one else, in terms of civil or customary law, to marry each other under civil law.
It is important though to bear in mind that the Act only allows people to enter into a civil marriage after a customary marriage, and not the other way around. In other words, if you have already concluded a civil marriage, you can’t legally enter into a customary marriage after that - even with each other.
CAN WE HAVE ANTENUPTIAL CONTRACT IF WE GET MARRIED UNDER CUSTOMARY LAW?
Yes, you can!
The default for customary marriages is that you and your spouse will be married in “community of property”. It’s the same with civil marriages and civil unions.
If you don’t want the be married in “community of property”, you would need to conclude a written ante-nuptial contract (with or without accrual) before the formalities of the customary marriage are concluded. Bear in mind that a customary marriage may be concluded long before the marriage is actually registered at Home Affairs, so it is important to discuss this with your partner and your respective families before any formal negotiations or celebrations are started.
DO WE HAVE TO MARRY UNDER A CIVIAL MARRIAGE TOO IN ORDER TO HAVE AN ANTENUPTIAL CONTRACT?
Nope. If you’d like to only be married under Customary Law but have an Antenuptial Contract, that’s fine.
Need help wrapping your head around any of this?