It is not legally possible for both a customary marriage and a civil marriage to co-exist alongside each other. Parties are either married by customary law or by civil law, an acting judge said in a legal battle between a husband and wife as to which regime is applicable to them.

The wife told the Polokwane High Court in Limpopo that she is married to her husband in community of property and that they have concluded a customary marriage.

The husband holds a completely opposed view. He denies that they agreed to enter into a customary marriage and insisted they were married in terms of civil law. They had always wanted to marry out of community of property and it is for that reason that they concluded an ante-nuptial agreement which excluded community of property and loss as well as the accrual system, he told the court.

According to the husband, 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 insists that they are married in community of property.

But Acting Judge M Mangena said the statement that both marriages are valid is legally untenable and this submission was based on a wrong understanding of the law.

The judge said it first has to be determined under which marriage regime they are married, before the court can decide on the ante-nuptial contract. But, he said, to determine this the parties will have to orally testify, as this matter cannot be decided on court papers. He subsequently referred the matter for oral evidence.

Judge Mangena meanwhile 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.

Judge Mangena said the issue of whether being married in terms of customary or civil law matters 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.

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

zelda.venter@inl.co.za

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