CONVERSION OF A MARRIAGE

I previously wrote an article regarding the conversion of a customary marriage to a civil marriage in which an antenuptial contract was entered into only after the conclusion of the civil marriage and not the customary marriage. In the article, I alluded to the fact that the conversion without a court order may be prejudicial to third parties, such as creditors, in the joint estate. On 10 June 2024, the High Court in Pretoria handed down a judgment - https://www.saflii.org/za/cases/ZAGPPHC/2024/547.html - declaring the provision enabling the conversion of a customary marriage to a civil marriage unconstitutional, but on the grounds of potential prejudice that may be suffered by the financially weaker spouse.

For that matter, the parties concluded a customary marriage in 2011 without signing an ANC. That being the case, the parties were married in community of property. It was only in 2019 that the parties signed an ANC before they entered into a civil marriage. The husband commenced divorce proceedings, and the High Court had to determine the applicable matrimonial regime of the parties’ marriage/s.

The High Court undertook an exercise in interpretation and determined the legal consequences of the provision allowing for the conversion. The Court stated that the ANC had been used to remove assets from the reach of the other spouse who would otherwise have had reach by virtue of the customary marriage, which was in community of property. The reach would ordinarily occur upon the dissolution of the marriage, either upon death or divorce. The Court stated that the legislature did not intend for the conversion of customary marriage to civil marriage to mean the termination of the customary marriage. Instead, it was stated that the provision dealt with the concept of a change in the matrimonial regime. The Court held that for there to be a change in a matrimonial regime, there needs to be judicial oversight, which is currently lacking in the conversion provision. Judicial oversight is required to provide the necessary protection to financially weaker spouses and the parties’ creditors, the court held.

In deciding that the conversion provision is unconstitutional, Acting Judge Marumoagae concluded that the provision unfairly discriminates against spouses in monogamous customary marriages who would not have the same protection that spouses in monogamous civil marriages have when it comes to the amendment of their matrimonial regime. In other words, those in civil marriages may amend their matrimonial regime through judicial oversight, whereas those who convert their customary marriages to civil marriages may do so without judicial oversight. The unfair discrimination was held to be on the basis of gender in that it is mostly women who are usually in the financially weaker position in marriages. Marumoagae also concluded that the conversion provision amounts to arbitrary deprivation of property in that the ANC signed after the conclusion of the customary marriage but before the civil marriage has the effect of allowing one spouse to deal with their assets as they wish, to the detriment of the other spouse who would otherwise be the co-owner of the assets.

The issue I have with Acting Judge Marumoagae’s reasoning is that it is based on the view that the financially weaker spouse is divested of their half share in the assets of the joint estate. In my mind, when a customary marriage is converted to a civil marriage, there is no division of the joint estate for the simple reason that the customary marriage is not dissolved but rather replaced with a civil marriage. All the assets are part of the joint estate as at the date of the customary marriage until the date of the civil marriage. Assets acquired after the civil marriage would then be regulated in terms of the applicable matrimonial regime of the civil marriage. Either party would then be free to determine how their half share in the joint estate should be dealt with upon death or divorce. It is only then that there would be a division of the assets that were regulated by the matrimonial regime of the customary marriage.

Since the order is one of constitutional invalidity, the Constitutional Court will have to confirm the declaration of invalidity. It will be interesting to observe how the Constitutional Court finally decides the issue.