Change of marriage - II

I have read the article by Allen West - Change of marriage - regarding the changing of customary marriages, but must, with all due respect, disagree with it insofar as section 10 of the Recognition of Customary Marriages Act is concerned. The word marriage is used extensively in Section 10. Except in subsection 1 where reference is twice made to ‘’customary marriage’’ and subsection 4 where reference is made to ‘’any other marriage’’, the word marriage is used to mean a marriage under the Marriage Act.

Wherever customary marriage is intended the words ‘’customary marriage’’ and not just ‘’marriage’’ are used. In particular in subsection 2 , which is one sentence, the word marriage is used three times. By any normal rule of interpretation the same meaning should be given to the word each time it is used – namely a marriage in terms of the Marriage Act. If the legislature intended that when the word was used for the third time in the same sentence it should have a different meaning – namely the existing customary marriage - it would have said so. The word marriage at the end of the section would have been qualified with the word ‘’customary’’ (or ‘’pre-existing’’) as it is in every other reference to a customary marriage in the section. The other sections referred to, namely section 7(4) and 7(5) are specifically applicable where the parties wish to retain their customary marriages and change the Patrimonial Property System. Here we are dealing with existing marriages which do not change their character as customary marriages and there is no new marriage.

In Section 10 we are dealing in effect with a new marriage. The parties are entitled to contract a marriage under The Marriage Act. This marriage is a new marriage which replaces the customary marriage. This is a totally different ball game from altering the Patrimonial System in a marriage which remains intact as a customary marriage. That this is a new marriage is enforced by the provisions of subsection 3 which specifically provide that the provisions of the Marriage Act referred to apply. On a proper interpretation of Section 10(2) accordingly, provision is made for the parties to enter into an antenuptial contract prior to contracting the new marriage in terms of the Marriage Act. I would much appreciate comments on the above. Has the section as yet been tested in court? Sitting out here in the country I could not find any reference to a decision in this regard.

I am sitting in a very awkward situation here – being pressed to register a transfer and bond and the transferee being adamant she wants the property in her own name. The question of the validity of the bond is accordingly at stake. The transferee has just entered into a marriage with her customary spouse under the Marriage Act and the parties executed an antenuptial contract prior to the marriage. It seems to me that since different interpretations have been given to this section, if the antenuptial contract is registered, and we go ahead with the transfer and bond in the name of the transferee only, we should take the precaution of getting the husband to sign a Section 15 (2) consent to the bond ‘’insofar as may be necessary should the marriage concluded between the parties under the Marriage Act turn out to be one in community of property as a result of a decision of a competent court’’ or words to that effect. Any comments that any reader may have will be of great assistance.

Ranald Vise, Coxwell, Steyn, Vise & Naude Louis Trichardt

Reader Comments:

Allen West 20/10/2011:

I cannot agree with the said interpretation of section 10 for the following reasons:

  1. Section 2 recognises all valid customary marriages entered into before and after the coming into operation of the Act.
  2. Section 7 makes the provisions of the Matrimonial Property Act 88 of 1984 applicable to such marriages.
  3. Section 10 merely provides for the conversion of the open ended customary marriage into a civil marriage.
  4. It will be to the detriment of creditors should a person today be married in community of property and without due notice such marriage is out of community of property. The provisions of section 20/21 of Act 88/84 must be complied with to change the matrimonial property regime.

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