It is not legally possible for both a customary marriage and a civil marriage to co-exist. Parties are either married by customary law or by civil law, Limpopo High Court (Polokwane) Acting Judge M Mangena said to a couple.

According to The Star, the wife told the court that she was married in community of property and that they had concluded a customary marriage.

However, the husband denied that they agreed to enter into a customary marriage and insisted they were married in terms of civil law.

He said they had also concluded an ante-nuptial agreement which excluded community of property and loss as well as the accrual system.

According to him, Home Affairs registered the marriage, which he said is governed by the Marriage Act.

Halfway through the court proceedings, however, the parties agreed that both marriages should be regarded as valid.

They said the only issue for the court to determine remained the issue of the ante-nuptial contract, as the wife insisted that they were married in community of property.

Mangena said the statement that both marriages were valid was legally untenable and this submission was based on a wrong understanding of the law, notes the report in The Star.

Mangena said it first has to be determined under which marriage regime they were married, before the court could decide on the ante-nuptial contract.

But, he said, to determine this the parties would have to orally testify, as this could not be decided on court papers. He subsequently referred the matter for oral evidence.

Mangena commented on the beauty of marriage, founded on love and trust, and said it is inconceivable that two people can be married to each other but differ as to the regime applicable to their marriage.

‘But in law, strange things happen, especially in marriages of some black/African people,’ he said.

Mangena said the issue of  being married in terms of customary or civil law mattered a lot.

‘It is a big legal issue that has pre-occupied judicial and non-judicial minds for centuries and it appears it will be like this for as long as black people have a choice whether to marry either by customary law or civil law.’

This is because in African culture, a marriage is not an event but a process involving not only the parties getting married but also their families and children.

‘It is a cultural process with legal consequences as opposed to a legal process with cultural consequences,’ he said.

Mangena added: ‘A wedding (marriage) is a ritual full of cultural meaning. Your wedding tells us who you are.’

Full report in The Star

Judgment