Gumede – a note

In terms of the Constitutional case of Gumede all customary marriages, whether entered into before or after 15 November 2000 i.e. the date on which the Recognition of Customary Marriages Act became operative, are deemed to be in community of property

This has the effect that an alienation of immovable property requires the written consent of the other spouse (see section 15 of the Matrimonial Property Act 88/84). The description of parties to deeds and documents will therefore also have to disclose that the parties are married in community of property.

Should a party allege that he/she has a lobolo-marriage, proof in the form of a registration certificate from Home Affairs must be obtained.

Practitioners must be wary of describing a party as being unmarried in the absence of a registration certificate, as section 4 of the Recognition Act clearly provides that the non registration of the marriage does not affect the validity of the marriage.