Vermoënsregtelike gevolge by die verandering van die huwelikstelsel

Abstract

The Recognition of Customary Marriages Act provides for the "conversion" of a customary marriage into a civil marriage. The Act, however, does not adequately regulate the consequences during the interface between the spouses' customary marriage and civil marriage. Section 10(2) provides only that if spouses who are married at customary law subsequently enter into a civil marriage with each other, their marriage is in community of property and of profit and loss unless such consequences are specifically excluded in an antenuptial contract which regulates the matrimonial property system of their marriage. This section does not deal with the position where the customary marriage, for example, is in community of property and the spouses want to "convert" their customary marriage in a civil marriage out of community of property. Uncertainty exists as to whether the joint estate of the customary marriage continues to exist or is terminated at the date of the civil marriage, and whether the spouses in the aforementioned example have to enter into an antenuptial contract prior to the civil marriage or have to comply with other requirements. The fact that the Act is silent on the effect of the conversion on the customary marriage contributes to the uncertainty. The purpose of this article is to address these issues.