Change of marriage - III

Ken Mustard writes as follows:

"I have read the article on the 20th October 2011 by Ranald Vise - Change of marriage - II . At first glance section 10 of the Recognition of Customary Marriages Act (RCMA) appears to suggest that when parties to a customary union enter into a marriage in terms of the Marriage Act as contemplated in section 10 (1) of the Act the marriage would be in community of property unless the parties conclude an antenupual contract before conclusion of the marriage in terms of the Marriage Act. However, section 2 (1) of the RCMA reads as follows: “a marriage which is a valid marriage at customary law of existing at the commencement of this act is for all purposes registered recognized as a marriage”. Section 2 (2) of the RCMA reads as follows: “A customary marriage entered into after the commencement of this act which complies to the requirements of this act is for all purposes recognized as a marriage”.

The term “marriage” is not defined. However, logically, it should mean a civil marriage of the RCMA in terms of the Marriage Act. Section 7(1) provides that the proprietary consequences of a customary marriage entered into before the commencement of the act shall continue to be covered by customary law. On the other hand in terms of section 7(2) of the act a customary marriage entered into after commencement of the act is (with certain exceptions) a marriage in community of property unless the parties have entered into an antenuptual contract.

Taking all this into account one can interpret section 10(2) as follows:

1. Where the parties entered into a customary marriage prior to the commencement of the Recognition of Customary Marriages Act the marriage is governed by customary law and as the parties would have not entered into an antenuptual contract it would be regarded as being in community of property; 

2.  If the parties entered into a customary marriage after the commencement of the Recognition of Customary Marriages Act then the marriage would be in community of property unless the parties have entered into an antenuptual contract in terms of section 10(2) of the Recognition of Customary Marriages Act prior to the conclusion of a customary marriage in which case the marriage in terms of the Marriage Act would be governed by the terms of the antenuptual contract;

3. The antenuptual contract referred to in section 10(2) of the Recognition of Customary Marriages Act is an antenuptual contract referred to in section 7(2) of the act and the parties are not entitled to enter into an antenuptual contract prior to registration of a marriage in terms of the Marriage act. It must be borne in mind that marriages concluded in terms of the Marriage Act in community of property cannot be changed post marriage to a marriage out of community of property without a court order. If section 10(2) is interpreted so as to permit an antenuptual contract to be concluded after a customary marriage entered into in terms of RCMA (which by law is in community of property) and before a civil marriage then effectively the parties would be given the power to vary the matrimonial property regime by contract which is not otherwise permitted in law."

While Ranald Vise responds as follows: 

"Reply to Allen West's Comments (at the end of Change of marriage - II )

1. The heading to section 10 reads ‘’Change of marriage system’’. While this is not part of the actual wording, headings must have a persuasive effect on the interpretation of the section and are an indication of the intention of the legislature. As Allen has stated elsewhere, on his interpretation of the Section there is little point in the parties entering into a marriage in terms of section 10. The legislature must be assumed not to have intended to make a largely pointless provision. 
2. A marriage system means the legal effects of the marriage between the parties as regards their personal and property relationships. The patrimonial system is a part of the system. If meaningful change to the system is to take place it must be able to include the patrimonial system.
3. Section 10 (1) is quite clear – a man and a woman between whom a customary union subsists are competent to contract a marriage with each other under the Marriage Act. If the parties were merely changing the legal label of their existing marriage they would hardly be ‘’contracting a marriage’’. The section accordingly provides for a new marriage to be entered into, with changes which the parties can contract about. One of these changes is a change in the patrimonial system which is provided for in Section10 (2).
4.  As far as prejudice to creditors is concerned I do not see that this adversely affects creditors. A party entering into a marriage out of community of property remains liable for all debts and liabilities incurred prior to the marriage. The customary marriage gave rise to joint liabilities – the parties will remain jointly liable for these joint liabilities incurred prior to the new marriage just as if they had been in some other form of partnership prior to the marriage and incurred joint liabilities. By executing an antenuptial contract the parties do not affect the rights of creditors against them and their assets incurred prior to the marriage. The registration of the antenuptial contract provides notice to the public of the new property regime to govern the new marriage.
5. In view of the Gumede decision which imposes community of property retrospectively on marriages prior to the act this Section can be used to provide relief for parties who in the belief that their marriage was governed by customary law arranged their property affairs accordingly. If the only alternative is an application to court this creates undue hardship in many cases where the parties cannot afford to bring such an application.
6. It should be borne in mind that prior to the Gumede decision and especially the Act coming into operation it was common conveyancing practice to describe the parties to an unregistered union as ‘’unmarried’’ and many properties and bonds were registered accordingly, without the spouses consent – but maybe the affect of the Gumede decision on these transactions is another huge can of worms that may one day be opened."

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