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Another Constitutional Challenge in Family Law

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Published Date: November 22, 2023

On 4 December 2023, the Pretoria High Court will determine whether Section 10(2) of the Recognition of Customary Marriages Act is unconstitutional and should be referred to the Constitutional Court.

The Court invited Adams & Adams Attorneys, together with the Gauteng Attorney’s Association, to join the proceedings as Amicus Curiae to assist the Court in coming to a just and equitable decision.

In the matter before the Court, a spouse in a divorce action raised an argument in the form of a Constitutional issue in relation to Section 10(2) of the Recognition of Customary Marriages Act.

The parties entered into a customary marriage during 2011, which is automatically a marriage in community of property in the absence of an antenuptial agreement. Some 10 years thereafter, the parties then entered into a civil marriage with each other out of community of property in terms of an antenuptial agreement.

The constitutionality of Section 10(2) of the Recognition Act has been placed in issue in as far as it purportedly allows for the changing of a matrimonial regime without judicial oversight, to the severe prejudice of the creditors of the joint estate, as well as the protection, recognition, and acknowledgement of spouses’ vested ownership in the joint estate.

A question that arises is that if parties married customarily are entitled simply to enter into a civil marriage and change their marital regime without any judicial oversight, what protection is afforded to the wife who may for various reasons not be on the same footing as her husband to negotiate a “new” matrimonial property system which may be prejudicial towards her? There also seems to be some inequality in respect of parties in a civil marriage who are not entitled to change their marital regime without any judicial oversight.

The Court will have to decide whether, in addition to the technical and legal arguments raised, Section 10(2) discriminates against women in customary marriages which constitutes discrimination based on gender, race, and marital status.

Customary Law is a complex part of the South African Family Law and should not only be recognised but also understood and developed to allow for equality in accordance with our Constitution.

Adams & Adams represents the Amicus Curiae (The Gauteng Attorney’s Association) together with Advocate M Haskins SC and Advocate SM Stadler.

Shani van Niekerk
Senior Associate | Attorney

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