Big questions for South Africa’s marriage laws

 ·3 Dec 2023

A major change to marriages in respect to customary marriages could be on the cards for South Africa.

On Monday, 4 December 2023, the Pretoria High Court will state if Section 10(2) of the Recognition of Customary Marriages Act is unconstitutional. If so, it will be referred to the Constitutional Court.

In the matter before the court relating to divorce, two parties entered into a customary marriage in 2011, automatically becoming a marriage in a community of property due to the absence of an antenuptial agreement.

“The constitutionality of Section 10(2) of the Recognition Act has been placed in issue in as far as it purportedly allows for the changing of a matrimonial regime without judicial oversight, to the severe prejudice of the creditors of the joint estate, as well as the protection, recognition, and acknowledgement of spouses’ vested ownership in the joint estate,” Adams & Adams’ Shani van Niekerk said.

“A question that arises is that if parties married customarily are entitled simply to enter into a civil marriage and change their marital regime without any judicial oversight, what protection is afforded to the wife who may, for various reasons, not be on the same footing as her husband to negotiate a “new” matrimonial property system which may be prejudicial towards her?”

She added that there is inequality in terms of how the parties in a civil marriage are entitled to a change in their marital regime without any judicial oversight.

The High Court will thus have to decide if Section 10(2) discriminates against women in customary marriages according to gender, race, and marital status, as well as the aformentioned technical and legal arguments raised.

“Customary Law is a complex part of the South African Family Law and should not only be recognised but also understood and developed to allow for equality in accordance with our Constitution,” van Niekerk said.

Adams & Adams’ Attorneys, as well as the Gauteng Attorney’s Association, are taking part in the proceedings as Amicis Curiae as per the court’s request to help in finding a just and equitable decision.

Read: South Africa’s new divorce laws get the green light

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