Can I change the terms of my marriage so that I can marry a second wife?

The long answer

There are two separate issues here:

1. Changing your marriage regime from in community of property to out of community of property;

2. Whether you can change your marriage from civil to customary in order to marry a second wife.

1. Changing your marriage regime from in community of property to out of community of property:

You and your wife would both have to apply to the High Court for permission to sign a Notarial Contract (which means a postnuptial contract) that sets out your new marriage property system. This is in terms of section 21(1) of the Matrimonial Property Act. If the court grants permission, the Notarial Contract, or postnuptial contract, is registered at the Deeds Office. Once it is registered, it becomes your new marriage property system.

The court must be satisfied that:

• sound reasons for the proposed change exist;

• sufficient notice of the proposed change must be given to all creditors as well as the Registrar of Deeds;

• no other person will be prejudiced (made worse off) by the change in the matrimonial property system.

You would need the following documents for the court application:

• certified copies of identity documents or passports for both you and your wife;

• certified copy of the marriage certificate;

• the reason why you didn’t register an antenuptial contract before you got married;

• the reasons that you want to have a postnuptial contract now;

• copies of proof of address for both you and your wife;

• income tax numbers for both you and your wife (if applicable);

• occupation/job descriptions for both of you;

• the full names and dates of birth of your children (if applicable);

• the full details of assets that both of you currently own (including movable and immovable property, investments and cash);

• full details of all existing creditors (together with supporting documentation such as most recent statements, etc).

Because this is an application to the High Court, you would need to be represented by a lawyer. You would also need to give notice to the Registrar of Deeds and you would have to publish notices of your application in two local newspapers, and the Government Gazette at least 14 days before the court application is heard so that anyone who might be affected, like creditors, could come forward. You would also have to send your known creditors notice by registered mail. You and your wife would have to agree on how you would divide up your joint assets to draft the postnuptial contract, and what it meant to be out of community of property, especially if you got divorced or one of you died.

The whole process could take up to three months and would cost a lot of money. Depending on how complicated it was, it could cost between R15,000 and R30,000 in legal fees.

2. Whether you can change your marriage from civil to customary in order to marry a second wife:

We already know that you cannot marry a second wife under customary law if you are already married to the first under civil law. And although we know that you can first marry under customary law, and then go on to marry the same partner under civil law, you cannot change your marriage regime from civil to customary. 

Fatima Osman of UCT in her 2019 published thesis says: “Finally, it should be noted that section 10(4) of the Recognition Act (of Customary Marriages Act 120 of 1998) does not allow parties in a civil marriage to enter into a customary marriage - peculiarly even with each other.”

Wishing you the best,
Athalie