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African marriages and antenuptial contracts

Customary law marriages are governed by customary law, the Recognition of Customary Marriages Act and the Matrimonial Property Act.

  • In terms of these acts, marriages are automatically in community of property unless the parties enter into an antenuptial contract (ANC) before their marriage.
  • If┬áparties to a customary marriage wish to get married out of community of property they must conclude the contract before the marriage, and have it┬ánotarised and registered at the deeds office.
  • If the parties marry in terms of customary law and want to marry in terms of civil law, they may only do so if there is not another spouse married to either party in terms of customary law. If there is already another customary law spouse then they may only conclude another customary law marriage.
  • If the husband is already married in terms of customary law and wants to marry another wife, he may do so in terms of customary law but he must make application to the court to approve a written contract which will regulate the future matrimonial property system of his existing marriage and the prospective marriage.
  • An ANC is not automatic proof of a customary law marriage. Parties should also register the marriage with Home Affairs.

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Email: info@bmalaw.co.za

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