A customary marriage can be registered in accordance with the Recognition of Customary Marriages Act. Either spouse may apply to the registering officer for the registration of the customary marriage and must furnish the registering officer with the prescribed information and any additional information required to satisfy the officer as to the existence of the marriage. A registering officer must, if satisfied that the spouses concluded a valid customary marriage, register the marriage by recording the identity of the spouses, the date of the marriage, any lobolo agreed to and any other particulars prescribed. A certificate of registration bearing the prescribed particulars will then be issued. The registration of a customary marriage is not a legal requirement for the validity of the marriage, but it does serve as proof of the existence of the marriage.
If the couple decides to marry out of community of property, an antenuptial contract should be signed before any ceremony. However, it is possible to execute a postnuptial contract for the customary marriage, which will be registered in the deeds office.
Both spouses must bring the application and must consent to have their marriage contract amended. One spouse cannot bring an application without the other’s consent and participation. The postnuptial contract must be signed by both parties.
Changing the matrimonial property regime via a postnuptial contract requires an application to the High Court and is more costly than an antenuptial contract, costing between R15 000 and R30 000. Therefore it is wise to give this careful thought prior to the marriage.
Simon Dippenaar
https://www.sdlaw.co.zaCape Town attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.
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