Groundbreaking Ruling Sets New Legal Standards for Customary Marriages in South Africa

The Constitutional Court of South Africa has handed down a landmark judgment that significantly affects couples who enter into a customary marriage and later sign an antenuptial contract (ANC) when concluding a civil marriage. The ruling confirms that an antenuptial contract signed after a customary marriage is invalid, unless the correct legal process is followed.

This decision has major implications for matrimonial property regimes, particularly for couples who assumed that a later civil marriage could override the consequences of an earlier customary marriage.

Understanding Customary Marriages and Property Regimes in South Africa

Customary Marriage and Community of Property

Under South African law, a valid customary marriage is automatically in community of property, unless an antenuptial contract is concluded before the marriage. This means that both spouses share a joint estate, including assets and liabilities, from the date of the customary marriage.

Many couples enter into a customary marriage first—often after the payment of lobola—with the intention of later formalising the relationship through a civil marriage. However, the law does not treat these as two separate marriages with separate property consequences.

Where Did the Constitutional Court Case Begin?

The Background of the Dispute

The matter originated from a couple who entered into a customary marriage in 2011. At that time, no antenuptial contract was signed. As a result, their marriage was in community of property by default.

Several years later, in 2019, the couple decided to conclude a civil marriage. Prior to the civil ceremony, they signed an antenuptial contract stipulating that their marriage would be out of community of property with the accrual system. The civil marriage was finalised in 2021.

In 2022, divorce proceedings were instituted, and one spouse sought to rely on the antenuptial contract to exclude community of property.

Can a Civil Marriage Override a Customary Marriage?

The High Court’s Initial Ruling

The High Court initially accepted the argument that the civil marriage superseded the customary marriage. It held that the parties were entitled to change their matrimonial property system by signing an antenuptial contract when concluding the civil marriage.

This ruling suggested that judicial oversight was not required when spouses transitioned from a customary marriage to a civil marriage.

The Constitutional Court’s Final Decision

Customary Marriages Are Not Automatically Dissolved

The Constitutional Court disagreed with the High Court’s reasoning. It confirmed that:

• A customary marriage is not dissolved when spouses later enter into a civil marriage with each other.
• The marriage is regarded as one continuous marriage.
• The matrimonial property regime established at the time of the customary marriage remains in place unless lawfully changed.

As a result, the marriage remained in community of property from 2011 onward.

Why the Antenuptial Contract Was Declared Invalid

The Court ruled that an antenuptial contract cannot be signed after a marriage already exists. Once a customary marriage is concluded without an ANC, any attempt to change the matrimonial property regime must comply with section 21 of the Matrimonial Property Act.

What Section 21 Requires:

• A joint court application
• Judicial oversight
• Proof that creditors will not be prejudiced

Because the spouses did not follow this procedure, the antenuptial contract they signed was declared invalid and unenforceable .

Key Legal Principles Confirmed by the Judgment

Protection of Economically Vulnerable Spouses

The Court emphasised that allowing spouses to change their matrimonial property system without court supervision could unfairly prejudice the economically weaker spouse—most often women in customary marriages.

Judicial oversight is therefore essential to protect constitutional rights to equality and property.

No “Second Chance” to Sign a Prenup

Once a customary marriage is concluded:

• You cannot sign a valid antenuptial contract later
• A civil marriage does not reset the marriage regime
• Only a court-approved postnuptial contract can change the system

Practical Advice for Couples Planning to Marry

What You Should Do Before Marriage

If you are planning to:

• Enter into a customary marriage
• Eventually conclude a civil marriage
• Marry out of community of property

Ensure your antenuptial contract is signed and registered before the customary marriage takes place.

Once the customary marriage is concluded, the law presumes community of property, and undoing that position becomes far more complex and costly.

Why This Judgment Is So Important

This Constitutional Court decision brings much-needed clarity to an area of South African family law that has caused confusion for many years. It firmly confirms that customary marriages carry full legal and proprietary consequences, and that those consequences cannot be altered informally or retrospectively by signing an antenuptial contract after the marriage has already been concluded.

The case was argued by Phuti Manamela of PM Attorneys, whose involvement helped clarify the legal position regarding the interaction between customary marriages, civil marriages, and matrimonial property regimes.

For couples, legal practitioners, and families involved in customary marriage negotiations, the message from the Constitutional Court is clear:

Get the legal paperwork in order before the uncles arrive at the gate.

Need Legal Advice on Antenuptial Contracts or Customary Marriages?

This Constitutional Court judgment highlights how critical it is to obtain proper legal advice before entering into a customary marriage or signing an antenuptial contract. A mistake at the outset can have serious and lasting financial consequences.

If you require assistance with:

• Antenuptial contracts (prenups)
• Customary marriages
• Civil marriages following customary marriages
• Community of property and accrual systems
• Changing a matrimonial property regime through the correct legal process

PM Attorneys, led by Phuti Manamela, provides experienced legal guidance in matrimonial and family law matters.

Contact PM Attorneys today to ensure your antenuptial contract or customary marriage is structured correctly and fully compliant with South African law.

References/View PDF

Constitutional Court of South Africa, VVC v JRM and Others [2026] ZACC 

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