Constitutional Court Ruling on Antenuptial Contracts in Customary Marriages: What it Means for South Africans

Constitutional Court Ruling on Antenuptial Contracts in Customary Marriages: What it Means for South Africans

By Sekome Attorneys Inc

In a significant and much-anticipated judgment on 21 January 2026, the Constitutional Court of South Africa has clarified the legal status of antenuptial contracts entered into after the conclusion of a customary marriage. The ruling provides long-needed legal certainty for couples, legal practitioners, financial institutions, and families navigating the complexities of matrimonial property law.

Background: Customary Marriages and Matrimonial Property Regimes

Under South African law, a customary marriage automatically creates a marriage in community of property, unless spouses validly enter into an antenuptial contract before the marriage. The practical effect of being married in community of property is that all assets and liabilities acquired before and during the marriage form part of a joint estate shared equally by both spouses.

Many couples attempt to alter this default regime by signing an antenuptial contract (ANC) after their customary marriage — often before a later civil marriage — in order to exclude community of property or to introduce the accrual system. Until now, the legal validity of such contracts was uncertain and contested.

The Constitutional Court’s Decision

In the matter of VVC v JRM and Others (CCT 202/24), the Constitutional Court addressed whether an antenuptial contract signed after a valid customary marriage can lawfully change the matrimonial property regime. The court held that:

Antenuptial contracts concluded after a customary marriage are generally invalid unless they are approved by a court in terms of the Matrimonial Property Act.

The Recognition of Customary Marriages Act does not authorise spouses to unilaterally alter their matrimonial property regime simply by signing an antenuptial contract after the customary marriage.

Any amendment to the matrimonial property system after marriage requires judicial oversight and approval under Section 21 of the Matrimonial Property Act.

The court declined to confirm a High Court declaration that Section 10(2) of the Recognition of Customary Marriages Act was unconstitutional, finding that the legal concerns were resolved by confirming the invalidity of the post-marriage antenuptial agreement itself.

Why This Matters

This landmark ruling carries profound consequences for South African family and property law:

1. Greater Legal Certainty

Couples now have clarity that antenuptial contracts must be concluded before the customary marriage to be valid — or, if not, must receive judicial approval under the Matrimonial Property Act before they can alter the default regime.

2. Protection of Vulnerable Spouses

The court’s emphasis on required judicial oversight reflects a constitutional objective: to protect economically weaker spouses, historically disadvantaged groups, and creditors from unfair or uninformed contractual arrangements.

3. Impact on Current and Future Marriage Planning

Many couples who believed they were married out of community of property — based on a post-marriage antenuptial contract — may discover that they remain married in community of property unless they obtained the necessary court order.

This affects financial planning, asset ownership, liability exposure, and estate planning. Family law practitioners and financial advisors should urge clients to undertake pre-marriage legal counselling and execute contracts at the appropriate stage.

Practical Takeaways

Before Customary Marriage: Antenuptial contracts should be concluded and registered prior to the marriage to exclude the default community property regime.

After Customary Marriage: If a couple wishes to change their property regime after marrying under customary law, they must apply to the High Court for approval in terms of Section 21 of the Matrimonial Property Act.

Legal Advice is Essential: Given the complexities of family and property law, couples should consult with experienced attorneys well before finalising their matrimonial property arrangements.

Conclusion

The Constitutional Court’s ruling marks a pivotal moment in South African matrimonial law. By reinforcing the requirement that antenuptial contracts must be validly executed before marriage or approved by a court afterwards, the judgment protects the integrity of customary marriages and offers clearer guidance for future marital planning.

For personalised advice on matrimonial property regimes or antinuptial contracts, contact Sekome Attorneys Inc — your trusted legal partner in family law.