- Woman fails to get court to confirm her marriage was out of community of property.
- Man claims they were married by custom before signing a civil contract.
- Court says factual disputes must go to trial, not be decided on paper.
In a dispute over how a marriage began and what it means for dividing property, the South Gauteng High Court in Johannesburg has refused to allow a woman to declare her marriage out of community of property without a full trial.
The woman claimed she and her husband were married under civil law in April 2021, with an ante-nuptial contract (ANC) signed before that date, meaning their assets should be kept separate. But her husband argued they were already married by customary law in February 2020—a type of marriage that automatically places couples in a community of property regime unless a contract is signed beforehand.
That disagreement mattered deeply. If the court had accepted her version, the couple’s property would not have to be shared equally during divorce. But the judge said the facts were too contested to settle without hearing evidence in court.
“This is the very meat of the divorce trial,” the judge ruled, dismissing the application and sending the matter back to the trial court.
Details of the court application
The woman brought an application asking the court to confirm that she and her estranged husband were married out of community of property. She relied on an ANC signed in January 2021 and a civil marriage concluded on 2 April 2021. She sought a declaratory order to that effect and asked for the pending divorce action to be paused until the issue was resolved.
However, the respondent disputed this version. He claimed the couple had already entered into a valid customary marriage on 29 February 2020—a date well before the ANC and civil ceremony. If proven, such a customary union would legally bind them in community of property by default, unless they had entered into an ANC prior to the marriage.
Judge C von Ludwig emphasised:
“If the marriage was concluded on 29 February 2020 and was thus in community of property… it obviously affects the manner in which the assets and liabilities of the parties are to be dealt with on divorce.”
The court found that the parties’ opposing claims amounted to a material dispute of fact, especially regarding the date and form of their marriage. This meant the issues could not be decided through motion proceedings, on paper, without evidence being tested under cross-examination.
Importantly, the court reaffirmed the legal principle that customary marriages are valid even when unregistered, and that they place spouses in a community of property regime by default unless explicitly altered by an ANC signed before the marriage.
Why the default matters: what’s yours is mine, unless the law says otherwise
South African law, under the Recognition of Customary Marriages Act, automatically places couples in a community of property regime when they marry under customary law, unless they have signed an ANC before the marriage. This default means all assets, debts, and property acquired by either party become jointly owned.
Many couples don’t realise that cultural marriage rites, even without formal registration, may amount to a legally recognised marriage. And if no ANC exists at that point, the law assumes equal ownership, something courts are not quick to undo.
In this case, the judge refused to let the applicant carve out an early legal advantage by declaring the marriage to be out of community of property, especially where the husband claims that a customary marriage, with its full legal consequences, came first.
Final order
The application was dismissed. The court ordered the applicant to pay the respondent’s legal costs on a standard scale, including counsel fees.
Conviction.co.za
