There are three marital property regimes. These marriage regimes also apply to customary law.
- A marriage is automatically in community of property if the parties did not sign an antenuptial contract or prenuptial agreement or A.N.C prior to entering into marriage.
- Parties can choose to sign an A.N.C that is out of community of property with accrual, where both parties to the marriage will have an equal share in assets and liabilities in the joint estate.
- Parties can also choose to sign an A.N.C that is out of community of property without accrual, where both parties to the marriage have no equal share of assets and liabilities. Each parties’ earnings, assets, liabilities remain entirely their own.
Many people assume that a traditional marriage must be registered with the Department of Home Affairs for it to be valid, which is not the case. Registration is not a requirement for validity. Registration merely serves as proof that the marriage exists. The requirements of a customary marriage include that:
- The parties must be 18 years of age,
- Both parties must marry under customary law, and
- The marriage must be negotiated and entered according to customary law.
THE FAMOUS ENHLE MLOTSHWA AND BLACK COFFEE CASE
One of the most publicised customary marriage disputes involved actress Enhle Mlotshwa and musician Black Coffee (Nkosinathi Maphumulo).
The Facts
- In 2011, the couple performed traditional Zulu marriage ceremonies and lobolo was paid.
- In 2017, the couple entered into a civil marriage and signed an A.N.C.
- The dispute was whether the A.N.C could change the property consequences of their earlier customary marriage.
The Arguments
Enhle Mlotshwa’s argument
Enhle Mlotshwa argued that a valid customary marriage already existed in 2011 because all the legal and customary requirements had been met. Since the marriage was automatically in community of property, she was entitled to an equal share of the assets accumulated during the marriage. She also argued that the A.N.C signed in 2017 could not replace or override an existing customary marriage.
Black Coffee’s argument
Black Coffee denied that a valid customary marriage had been concluded. He argued that although certain cultural events had taken place, the parties never intended to enter into a customary marriage. According to him, the 2017 civil marriage and A.N.C reflected the parties’ true intentions and effectively replaced any customary union that may have existed.
The Court’s Decision
The court examined the evidence concerning the traditional ceremonies and cultural practices followed by the parties. The court found Enhle Mlotshwa’s evidence to be credible and accepted that the requirements for a valid Zulu customary marriage had been met.
The judge concluded that:
- A valid customary marriage came into existence on 14 May 2011.
- The marriage was in community of property.
- Although Black Coffee denied that a customary marriage existed, the court disagreed.
- The High Court found that the couple had concluded a valid customary marriage and confirmed that their later civil marriage did not invalidate the customary marriage.
An important lesson from the case is that spouses cannot simply sign an A.N.C years after getting married and assume that it will change their property rights. The court found that the correct legal procedure had not been followed, meaning the A.N.C was not valid and could not change the legal effects of the existing customary marriage. There was also a Constitutional Court judgement that made a similar judgement.
We highly recommend that you consult your family attorney who will be in a better decision to advise you once you present them with all the facts. You are invited to contact Baartman & Du Plessis Attorneys for any further inquiries.
