“It is not legally possible for both a customary marriage and a civil marriage to co-exist. Parties are either married under customary law or civil law.”
This legal principle was stated by Judge Maboku Mangena in a recent appeal in the High Court in Polokwane.
The case involved a married couple at odds over which marriage regime applied. The wife claimed they married under customary law on 10 January 2015, in community of property, with no antenuptial contract. She said their marriage fell under the Recognition of Customary Marriages Act.
The husband disagreed. He denied any customary marriage and said they intended to marry out of community of property. To this end, they signed an antenuptial agreement on 13 October 2015, excluding community of property, which was registered at the Deeds Office. They then married civilly on 23 October 2015, and the husband insisted this civil marriage, under the Marriage Act, is valid.
Before the trial, the couple agreed to narrow the dispute to whether a customary marriage existed. The wife was to prove its existence first. But during proceedings, they agreed that both marriages were valid – and only the enforceability of the antenuptial contract remained in question.
Judge Mangena called this “an unusual and casual approach” to a serious legal dispute. He emphasised it is impossible for both marriages to stand side by side. Calling the notion that both are valid “legally untenable”, he said the lower court erred in allowing the case to proceed on this flawed basis.
The judge explained the validity of the customary marriage cannot be settled by agreement alone. It demands full evidence, which was lacking. The lower court had no solid facts to confirm the customary marriage.
Judge Mangena said the trial court should have insisted on a detailed written statement of facts, as required by court rules and precedent.
He added: “On the facts of this case, my preponderant view is that there were no concessions made, and if any, they were not properly made and are therefore not binding on this court. The issue regarding the existence of the customary marriage is still in dispute. We cannot decide it on appeal.”
The judge upheld the appeal, set aside the previous court order, and sent the matter back to the lower court to hear further evidence on whether the customary marriage exists.
Read the full judgment here.
