The Constitutional Court has delivered an important judgment clarifying how antenuptial contracts (ANCs) interact with customary marriages, bringing much-needed certainty to an area of law that has caused confusion for many couples and legal practitioners alike.
The key issue
Under South African law, a valid customary marriage is automatically in community of property, unless the parties sign an antenuptial contract before the marriage is legally concluded. The question before the Court was whether an ANC signed after a customary marriage, but before a later civil ceremony, could validly change the matrimonial property regime.
What the Court decided
The Constitutional Court confirmed that:
- Any antenuptial contract signed after a valid customary marriage is regarded as a postnuptial contract.
- Postnuptial contracts are not automatically valid and require High Court approval to be legally effective.
- The existence of a later civil ceremony does not change the legal status of the earlier customary marriage.
- Without a valid ANC signed before the customary marriage, the spouses’ estates merge into a joint estate by default.
In other words, once a customary marriage is concluded, the matrimonial property regime is already fixed unless a court authorises a change.
Why this judgment matters
The Court emphasised that this approach protects spouses, particularly those who may be economically disadvantaged, from having their property rights altered after the marriage has begun without proper oversight. It prevents unilateral or unequal changes to property regimes through agreements concluded informally or without full appreciation of the consequences.
The ruling also provides clear guidance for couples who plan to combine customary and civil marriage elements: If community of property is to be excluded, the antenuptial contract must be signed before the customary marriage is finalised.
What couples should do
Couples intending to enter into a customary marriage, or who plan to formalise their union with a later civil ceremony, should obtain legal advice before the customary union is concluded. Proper planning at this stage avoids uncertainty, disputes, and costly court applications later.
At Swanepoel van Zyl Attorneys, our family law team assists clients with antenuptial contracts, matrimonial property planning, and applications to court where postnuptial relief is required.