My fiancé and I have completed all the required customs to conclude a customary marriage. We have not registered the marriage at Home Affairs as yet. We have now agreed to exclude community of property and profit and loss from our marriage. Can we register an antenuptial contract?

It is trite law that an antenuptial contract can only be entered into by the parties before the marriage. Section 3(1) of the Recognition of Customary Marriages Act 120 of 1998 (RCMA) provides that in order for a customary marriage to be valid, “the prospective spouses must both be above the age of 18 years, must both consent to the marriage under customary law and the marriage must be negotiated and entered into or celebrated in accordance with customary law.”

Once all these requirements have been met, a valid customary exists, irrespective of whether or not the customary marriage has been registered at Home Affairs. Section 4(b) of the RCMA provides that the customary marriage must be registered within a period of three months after the conclusion of the marriage. Failure to register the customary marriage does not invalidate the marriage. Section 7 of the RCMA governs the proprietary consequences of a customary marriage. Section 7(2) provides that a customary marriage in which a spouse is not a partner in any other existing customary marriage, is a marriage in community of property.

Therefore, when a valid customary marriage has already been concluded between the parties, they cannot register an antenuptial contract, but will need to apply to court for an order granting them leave to register a post-nuptial contract in terms of section 89 of the Deeds Registries Act 47 of 1937, read together with section 21(1) of the Matrimonial Property Act 88 of 1984.

In Mashiane v Mhlauli (2020/11024) [2021] ZAGPJHC, the court was called upon to determine the validity of a customary marriage and the matrimonial property system covering it where an antenuptial contract was entered into subsequent to the marriage. In this case the parties had approached a firm of attorneys to register an antenuptial contract on their behalf. They disclosed to the attorney that they were married according to customary laws. The attorney advised them that they would need to apply to court for an order granting them leave to register a post-nuptial contract.

The parties, then seeking to circumvent a need for a court application to change their matrimonial property system, approached another firm of attorneys to assist them and instructed the notary public assisting them that they were unmarried. An antenuptial contract, with the inclusion of the accrual system, was registered.

The court found that the antenuptial contract which the parties registered after the conclusion of the customary marriage was null and void for failure to comply with section 89 of the Deeds Registries Act 47 of 1937, read together with section 21(1) of the Matrimonial Property Act 88 of 1984.

This case places an emphasis on the duty of a notary public to exercise reasonable skill and expertise when gathering facts and drafting documents. Failure to do so will result in the notary public being held liable for damages payable to a person who has suffered as a result of the negligence of a notary public. The court issued a stern warning to notaries and reminded them that there is a high tradition of honesty and reliability attached to the office of a notary, which must be faithfully upheld by all notaries.

Kloppers Inc has a team of highly skilled notaries who are readily available to assist you should you require to change your matrimonial property regime after marriage.