Customary Marriage Antenuptials Leave No Shortcuts After I Do

In a judgment that affects many customary marriages in South Africa, the Constitutional Court has clarified a critical and often misunderstood issue: an antenuptial contract (ANC) signed after a customary marriage is concluded is legally invalid, even if it is signed before the registration of a civil wedding.

In VVC v JRM and Others [2026] ZACC 2, handed down on 21 January 2026, the Court confirmed that customary marriages carry full legal force from the moment they are concluded, and that a later ANC can only be valid if approved by the High Court under section 21 of the Matrimonial Property Act.

The Court confirmed that such an ANC is legally invalid unless it complies with the strict requirements of section 21 of the Matrimonial Property Act.

One Continuous Marriage

The Court ruled that when a couple first enters into a customary marriage and later concludes a civil marriage, this constitutes one continuous and uninterrupted marriage, rather than two separate legal events. The civil marriage does not create a new marriage or alter the matrimonial property regime that already exists. The customary marriage is not terminated by the civil marriage but is instead legally subsumed into it.

Key Findings of the Ruling

1. Invalidity of post-customary marriage ANCs: Where a customary marriage exists, that marriage is in community of property by default, an ANC signed thereafter is invalid unless it is approved by the High Court in terms of section 21 of the Matrimonial Property Act.

2. Protection of spousal rights: The judgment ensures that spouses, particularly women, cannot be deprived of their half-share in the joint estate through a subsequently signed antenuptial contract.

3. Primacy of customary marriage: A customary marriage takes legal precedence and continues to exist notwithstanding a later civil marriage ceremony.

Background of the Case

The dispute arose from a relationship in which the parties concluded a customary marriage in 2011, which was by default in community of property. In 2019, the parties signed an antenuptial contract, and in 2021 they held a civil marriage ceremony. When divorce proceedings followed in 2022, the husband sought to rely on the 2019 ANC to exclude the wife from sharing in the joint estate.

The Constitutional Court held that because the marriage was already in existence when the ANC was signed, the ANC was invalid and unenforceable.

Practical Implications

If a couple enters into lobola negotiations or celebrates their customary marriage before concluding an ANC, they are by default married in community of property. A subsequently signed antenuptial contract, even if concluded before a civil or “white wedding”, will have no legal effect. To change their matrimonial property regime after a customary marriage has been concluded, the parties must apply to the High Court for a change of matrimonial regime in terms of section 21 of the Matrimonial Property Act.

This judgment brings an end to the long-standing belief that couples could first conclude a customary marriage and later change their matrimonial property regime by simply signing an ANC before a civil ceremony. The Constitutional Court has now confirmed that customary marriages carry full legal consequences from the moment they are concluded.

For clarity and tailored legal advice on antenuptial contracts, customary marriages, and matrimonial property regimes, parties are encouraged to consult Snymans Inc, who can provide informed guidance aligned with current constitutional principles and legal requirements.

Written by: Maret Carroll
Moderated and approved by: Rohula Kgabu

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