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Null declaration of customary union


A decision on the validity of a customary marriage and the division of the joint estate of such union – DS & Another v GM (50056/11) [2013] ZAGPPHC 23 (5 February 2013)

In this recent case, the North Gauteng High Court of Pretoria had to decide whether a purported customary marriage between the first applicant and the respondent should be declared null and void, and whether the joint estate of the first applicant and the respondent’s purported customary marriage should be divided equally.

On 15 September 1987 the first and second applicant were married by Civil Law. In 2007 lobola was paid by the first applicant for the respondent. This was done with the consent of the second applicant. All three parties had consented that this was a marriage by Customary Law, and were under this bona fide belief. The first and second applicant had lived in a different house to respondent. 

In this application the applicants now sought an order declaring the customary union between first applicant and respondent to be null and void. The applicant in this application also sought an order that the property obtained by the parties during the customary union be dealt with as though it was obtained by partners in a partnership. The applicants also sought an order that the assets and liabilities accrued during the customary union be the joint property and liabilities of the partners. 

The respondent in opposing papers did not oppose the customary marriage as being void. The respondent however sought an order that there should be a division of assets acquired by the parties. The respondent alleges that in 2006 before lobola was paid, she and the first applicant had acquired land and built on it. She alleged that the applicants had convinced her that the house should be registered in their names since they had a marriage certificate. She alleged that she had contributed to the building of the house and was entitled to half of the value of the house. This allegation was denied by the applicants.

There was no antenuptial contract in this matter and the Court found that the marriage should be regarded as a marriage in community of property. Part of the relief sought by the applicants was that the marriage could be regarded as a universal partnership. In order for there to be a universal partnership, each of the partners must bring something into the partnership, the partnership business should be carried on for the joint benefit of the parties, the object should be to make a profit and the contract should be a legitimate one. 

In this case the Court was of the view that there was no prior agreement as to how the partnership assets would be shared, and that each partner should be entitled to an equal share of the estate. The Court was of the view that taking into account the interest of justice, the respondent should be entitled to a half share of her and the first applicant’s joint estate. 

The purported customary marriage between the first applicant and the respondent was declared null and void. The Court ordered the joint estate of the first applicant and respondent’s purported customary marriage to be divided equally, and each party to pay his or her own costs.

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