Page 113 - Q&A

How valid is a marriage contract
if not confirmed by court?

June 2020
“I have been married to my husband for more than 20 years. We were both in
our early twenties when we were married according to customary rites as well
as civilly out of community of property. Since then my husband has built up
a few successful businesses and a few years ago we created our own postnuptial
agreement to confirm that we see ourselves as married in community of
property. Unfortunately, we have fallen on troubled times and wish to get
divorced. My husband says we are still married out of community of property as
the agreement we signed late is invalid. Is this true?”

To answer your question, it must firstly be confirmed whether a valid marriage
exists, and secondly, whether the later concluded marriage contract could
validly change your matrimonial property regime.

The legislation that governs the formalities of marriage in South Africa include,
the Marriage Act 25 of 1961, which regulates the solemnisation of monogamous,
heterosexual civil marriages and the Recognition of Customary Marriages Act
120 of 1998, which recognizes both monogamous and polygamous customary
marriages, provided they are concluded according to customs observed among
the indigenous people of South Africa as well as other statutory requirements in
terms of the Act. Lastly, the Civil Union Act 17 of 2006 regulates the solemnisation
of marriages between both opposite and same-sex couples.
In your situation the Marriage Act and the Recognition of Customary
Marriages Act is applicable due to the manner in which your marriage was
concluded. Provided the necessary statutory and custom requirements for
customary marriages was complied with it appears that your marriage was
validly concluded.

The question then is whether the contract that you and your husband
concluded later between yourselves validly amended the matrimonial property
regime that applied to your marriage in a way that would need to be given
effect to should you divorce.

Recently, our Constitutional Court, in having to consider whether a postnuptial
marriage contract concluded without the supervision of the court was valid,
found that home drafted contracts were not valid and enforceable if not
sanctioned by a court order. The Court confirmed that the only way married
couples could change their marital regimes were to approach the courts
in compliance with Section 21 of the Matrimonial Property Act, and that
any contract entered into without the supervision of the court, would not Family
be enforceable.

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