M.M (born M) v N.I.M (034446/19) [2025] ZAGPJHC 1042 (10 October 2025)
Click here to download the case
The plaintiff instituted action against the defendant for inter alia recognition of a customary marriage, annulment of a later antenuptial contract and divorce.
The defendant filed a counterclaim and sought an order inter alia for a decree of divorce, declaring the civil marriage entered between the parties on 5 January 2017 as valid and legal, and that the terms of the Antenuptial Contract entered into between the parties on 21 December 2016 were valid and enforceable.
The defendant denied that there was a customary marriage, contending the ceremonies were family appeasements and that the parties intended a civil marriage out of community of property regulated by an antenuptial contract.
The Court (Tsautse AJ) evaluated the evidence (including a lobolo confirmation and invitation) and conduct (cohabitation, family ceremonies, public statements) and then came to the conclusion that the parties did enter into a valid customary marriage which is effectively a marriage in community of property and of profit and loss.
The Court further found that the purpose of an Antenuptial contract is to regulate the matrimonial property regime of parties intending to get married. If parties wish to enter into an Antenuptial contract postnuptially, they need to do so by applying to Court in terms of section 21(1) of the Matrimonial Property Act, 88 of 1984 and the contract must be registered in terms of section 88 of the Deeds Registries Act, 47 of 1937. The Court found that there was no compliance with these requirements and consequently found the Antenuptial contract to be invalid.
The Court held that the civil marriage was invalid in the light of the prior valid customary marriage.
The Court held that a decree of divorce should be granted.
The Court ordered that the defendant pay the plaintiff’s costs.
This case emphasizes the fact that executors and also conveyancers should not just assume that parties are unmarried if a customary marriage is not registered with the Department of Home Affairs.
Summarised by Jan du Plessis, FISA CEO