I have read Change of marriage, Change of marriage II and Change of marriage III. In my opinion, the ante-nuptial contract, referred to in section 10 (2) of the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998), as mended, (“the RCMA”), can only be an ante-nuptial contract, which is entered into by and between parties to their intended marriage under the Marriage Act, 1961 (Act No. 25 of 1961), as amended, (“the Marriage Act”).
The following authoritative statement appears on page 147 of the 8th edition of Wille’s Principles of South African Law by Dale Hutchison, Belinda van Heerden, D P Visser and C G van der Merwe:-
“An antenuptial contract is a contract made by the parties to an intended marriage by which the matrimonial property regime applicable to their marriage and other related matters are regulated” (emphasis added).
The necessary corollary of the latter statement is that, as a matter of law, an ante-nuptial contract, in respect of an earlier, or one, marriage, cannot regulate the matrimonial property regime of a subsequent, or another, marriage
There is a presumption that, when section 10 (2) of the RCMA was enacted, the Legislature was fully aware of the position set out in paragraph 2.1 above and that, therefore, if it had intended to alter that position, it would have said so in clear and unequivocal terms.
Special attention is drawn to the provisions of section 10 (2), in particular, of the RCMA, which are cited in full in Change of marriage. It is essential to note and compare the words used in section 10 (2) of the RCMA with the words used in section 7 (2) of the RCMA. The latter provides as follows:
“A customary marriage entered into after the commencement of this Act in which a spouse is not a partner in any other existing customary marriage, is a marriage in community of property and of profit and loss between the spouses, unless such consequences are specifically excluded by the spouses in an antenuptial contract which regulates the matrimonial property system of their marriage” (emphasis added).
It is clear beyond any shadow of doubt from section 7 (2) of the RCMA that the words “their marriage” means “their intended marriage”. There is, therefore, no justification for interpreting the words “their marriage” in section 10 (2) of the RCMA, to mean “their subsisting marriage”.
01 November 2011