CONCOURT RULES ON PROPERTY RIGHTS IN CUSTOMARY MARRIAGE

Fri 23 January 2026:

The apex court confirms that customary marriages remain valid and continuous even if followed by a civil union.

The Constitutional Court of South Africa ruled on Wednesday that antenuptial contracts signed after a customary marriage are invalid. This landmark judgment clarifies that a customary marriage does not end when a couple later enters into a civil marriage. Instead, the civil union absorbs the existing marriage, meaning the original property regime remains in place legally.

Justice Majiedt delivered the majority judgment in Johannesburg, overturning a previous ruling by the Pretoria High Court. The case involved a couple who married under customary law in 2011, which created a joint estate by default. They later signed an antenuptial contract in 2019 before a civil ceremony in 2021 to exclude community of property.

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Protecting vulnerable spouses through judicial oversight

The court found that spouses cannot privately change their matrimonial property system without following the Matrimonial Property Act. Any mid-marriage change to property rights requires a formal court application to protect both spouses and any external creditors. This ensures that economically weaker partners are not unfairly deprived of their rightful share of a joint estate.

Legal experts noted that the ruling places customary marriage on an equal footing with civil unions in South Africa. It prevents the historical marginalisation of traditional unions by ensuring they are not treated as secondary or temporary arrangements. The judgment confirms that once lobola is paid and the marriage exists, the legal consequences are immediate and binding.

The ruling is a significant victory for gender equality and the protection of property rights in customary marriage. It removes confusion regarding when a marriage officially begins and ends. Couples wishing to change their property regime must now seek a court order to ensure the process is transparent and fair. This decision reinforces the constitutional principle that all forms of marriage deserve equal respect and legal protection.