- within Criminal Law, Insolvency/Bankruptcy/Re-Structuring and Privacy topic(s)
A recent High Court decision arising from the high-profile Black Coffee divorce has clarified core principles that matter far beyond celebrity headlines. It confirms when a customary marriage exists, what property system applies by default, and how (and whether) that system can be changed later. For executives, entrepreneurs, lenders and deal teams, these rules affect everything from matrimonial risk and estate planning to suretyships and property transfers.
The court's key confirmations
Customary marriage is a living system, judged in substance. A marriage under the Recognition of Customary Marriages Act (RCMA) is valid if both parties are 18+ and consent to be married under customary law, and the marriage is negotiated and entered into or celebrated in accordance with that custom. Courts assess the overall picture of the families' practices rather than insisting on a rigid checklist.
On the facts, lobolo was negotiated and paid, and traditional ceremonies (umembeso/umbondo) were held – supported by invitations describing a "traditional wedding". The court found the statutory requirements and Zulu customs were satisfied, so a valid customary marriage existed.
The default property regime is "in community." Unless excluded by a valid antenuptial contract concluded before the marriage, a post-2000 customary marriage is in community of property and profit and loss – meaning a joint estate, shared gains and losses, and spousal consents for certain transactions.
You cannot "fix" the property system afterwards by private contract. If a valid customary marriage already exists, later signing an antenuptial contract (to convert to "out of community") is legally ineffective without a court order under section 21 of the Matrimonial Property Act. In this case, an antenuptial executed years after the customary rites was held void ab initio. The court warned that parties cannot use a later civil ceremony to sidestep judicial oversight; post-nuptial changes require the court's discretion – especially for prevention of any prejudice which could be suffered by the other spouse.
Practical Implications
1) Transactions and consents: "In community" status triggers spousal consent requirements (for example, certain commercial transactions). Creditors should be alert to customary marriages when verifying marital status and consents, especially where ceremonies pre-date any civil solemnisation. A missed consent can delay or imperil certain transactions.
2) Private wealth and estate planning: Owners and executives who believe they are married "out of community" because of a later antenuptial may in fact be 'in community' if customary rites created a marriage before that contract. That changes the lens on estate planning, inter-spousal donations, trust funding, and divorce exposure.
3) Employment, benefits and policy: Employers should recognise that customary marriages are legally equivalent to civil marriages where the RCMA criteria is met. Leave policies, medical aid, pension nominations and death-in-service benefits must reflect that reality, and HR departments should accept reasonable documentary proofs (for example, lobolo letters, family confirmations) while registration formalities are regularised.
4) Conveyancing and banking: Conveyancers, banks and insurers should be cautious where a client insists there is "no marriage" because there was no Department of Home Affairs registration or only a later civil ceremony. Registration is valuable for proof, but validity flows from the RCMA test and living custom, not from just a registry entry.
Practical guidance for couples and their advisers
- Plan the order of events. If a couple intends to marry out of community, an antenuptial contract should be executed before any marriage-forming customary rites. Once valid rites occur, the default community regime applies unless a pre-marriage antenuptial already exists.
- Use the correct route for changes. Where spouses later wish to change their matrimonial property system, the appropriate channel is a section 21 court application (jointly or separately, on good cause shown). Contracts signed after the marriage, without a court order, will not achieve a valid change.
- Preserve the record. Families may wish to retain lobolo letters/receipts, invitations, photographs and witness details. These materials frequently decide disputes about whether a customary marriage exists.
- Registration is advisable. While not constitutive of validity, registration simplifies administration (ID updates, benefits, estates etc) and reduces friction with third parties.
A note on maintenance
The court reaffirmed that post-divorce spousal maintenance is discretionary and grounded in fairness. Factors include means, needs, earning capacity, age, duration of the marriage and prior standard of living. The outcome in this case underscored a needs-based approach rather than an automatic preservation of marital lifestyle.
Conclusion
The judgment is a clear reminder that customary marriages are binding and enforceable when the RCMA test and living customs are met, and that their property consequences attach from that moment – not from later formalities. For businesses, this translates into better due diligence and consent processes; for families, it calls for careful sequencing of ceremonies and antenuptial planning. In short: get the order right, keep the record clear, and use the legal-supervised route if a change is needed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
