Be aware of the proprietary consequences of converting a customary marriage to a civil marriage

In South Africa there are many instances where couples conclude a customary marriage and subsequently enter into a civil marriage with each other in terms of the Marriage Act 25 of 1961 (“the Marriage Act”). The contentious issue is the effect that the conversion of the marital regime may have on the proprietary aspects of such marriages, particularly from a conveyancing perspective.

In terms of Section 10(1) of the Recognition of Customary Marriages Act 120 of 1998 (“the RCM Act”) parties to a monogamous customary marriage are competent to subsequently enter into a civil marriage in terms of the Marriage Act. When a couple concludes a monogamous customary marriage, it is deemed to be in community of property and the same marital regime would be applicable where they convert to a civil marriage, unless they conclude an antenuptial contract (“ANC”) in terms of Section 10(2) of the RCM Act.

The Effect of Converting your Marriage from Customary to Civil:

The proprietary consequences of the conversion of a couple’s marriage were dealt with in the case of NM v MM [2021] ZAGPJHC 9, where the parties had a pending divorce action and did not agree as to which marital regime was applicable to their marriage for the purposes of the division of the assets. The Applicant sought an order for the separation of this issue to be decided on separately before the divorce action was concluded.

The Respondent contended that the civil marriage concluded between the parties in terms of the ANC was “unlawful, contra bones mores (against good morals), unconscionable and should be declared null and void” (Para 10). She claimed that the civil marriage between them should be declared null and void, the ANC concluded after the customary marriage should be declared unlawful and set aside, and there should be a division of the joint estate. The Applicant on the other hand averred that the parties had intended to enter into a marriage out of community of property without an accrual after they had celebrated their customary marriage and as such, the ANC and civil marriage between them is valid.

The court referred to an insightful extract from South African Family 4th Ed. by Professors Heaton and Kruger wherein they submitted that the RCM Act does not adequately regulate the consequences of the conversion between the couples’ customary and civil marriages. If one marriage is not to be regarded as subservient to the other, it poses an issue in cases like this where the one marriage is in community of property and the other is out of community of property – two different marital regimes cannot govern the marriage simultaneously. They submitted that upon examining Section 10(2) of the RCM Act, it is evident that the in community of property will operate until the date that the civil marriage commences (Para 23). The consequence of this is that all assets acquired during the customary marriage will be regulated by the marriage in community of property, while the assets acquired after the civil marriage constitutes the spouses’ separate assets that do not form part of the joint estate as there is no accrual system. The court held that the aforesaid extract from the Professors made logical sense however, the court dismissed the application as the issue of the applicable marital regime is an integral part of the divorce action and therefore cannot be decided separately (Para 26).

The position of the legislation

Although the extract from the Professors makes logical sense however, the legislation must be applied as it is the most important source of our law. The provisions of section 21 and 22 of the Marriage Act make it clear that any parties wishing to change their matrimonial regime shall do so by obtaining a High Court order. The consequence of this is that before parties enter a customary marriage and wish for their marriage to be out of community of property, they must register the ANC prior to entering the customary marriage. Any ANC registered after the customary marriage has been entered into will be invalid and would require the parties to apply to the High Court for the change of their marital regime.

The Consequences of Converting your Marital Regime on Conveyancing:

When transferring property, it is pertinent for Conveyancer’s to ascertain whether the parties concluded the ANC before entering into a customary marriage as this affects the proprietary consequences of transactions. Should the parties have a valid ANC registered before concluding the customary marriage then they should be described separately in deeds and documents as such marriage will be out of community of property. If the parties entered into the customary marriage prior to the registration of the ANC, then their marriage is in community of property as the ANC would be void. As such, they must be reflected in deeds and documents as married in community of property unless they have concluded a postnuptial contract in terms of the provisions of the Marriage Act.