M.M v M.N and Another (29241/09) [2010] ZAGPPHC 24 (24 March 2010)

M.M v M.N and Another (29241/09) [2010] ZAGPPHC 24 (24 March 2010)

The court held that the Recognition of Customary Marriages Act requires a husband in a customary marriage who wishes to enter into a further marriage to obtain a court-approved contract regulating the matrimonial property system. The failure to comply with this requirement renders the subsequent marriage void, as the Act's imperative language and its purpose to protect the rights of existing spouses and children leave no room for discretion. The first respondent's marriage to the deceased was not preceded by such a contract and is therefore void. The applicant's marriage, concluded before the Act commenced, is recognized and must be registered.

Citation
[2010] ZAGPPHC 24
Parties
Applicant: M M; Respondent: M N; Respondent: Minister of Home Affairs
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
24 March 2010
Case Number
29241/09
Procedural Posture
Civil Application / Final Judgment After Hearing on Validity of Customary Marriage
Outcome
The purported marriage between the deceased and the first respondent is declared null and void. The applicant's marriage to the deceased is to be registered.
Judges
E Bertelsmann
Legal Topics
Recognition of Customary Marriages Act, Customary Marriage Registration, Matrimonial Property System, Nullity of Marriage, Proprietary Consequences, Constitutional Rights of Spouses
Family and Children Recognition of Customary Marriages Act Customary Marriage Registration Matrimonial Property System Nullity of Marriage Proprietary Consequences Constitutional Rights of Spouses

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Parties

M M

Applicant

M N

Respondent

Minister of Home Affairs

Respondent

Procedural Posture

Civil Application / Final Judgment After Hearing on Validity of Customary Marriage

Legal Issues

  1. 1 Whether the purported customary marriage between the deceased and the first respondent is valid in terms of the Recognition of Customary Marriages Act.
  2. 2 Whether the applicant's marriage to the deceased should be registered.
  3. 3 What are the consequences of failing to obtain a court-approved contract before entering into a further customary marriage.

Ratio Decidendi

The court held that the Recognition of Customary Marriages Act requires a husband in a customary marriage who wishes to enter into a further marriage to obtain a court-approved contract regulating the matrimonial property system. The failure to comply with this requirement renders the subsequent marriage void, as the Act's imperative language and its purpose to protect the rights of existing spouses and children leave no room for discretion. The first respondent's marriage to the deceased was not preceded by such a contract and is therefore void. The applicant's marriage, concluded before the Act commenced, is recognized and must be registered.

Court Disposition

The purported marriage between the deceased and the first respondent is declared null and void. The applicant's marriage to the deceased is to be registered.

Orders

  • The purported customary marriage between the deceased and the first respondent is declared null and void ab initio.
  • The second respondent is ordered to register the applicant's marriage to the deceased.