Antenuptial Contract After Customary Marriage in SA

Many couples in Gauteng marry under customary law first and plan a civil ceremony, sometimes a white wedding, some years later. Along the way, someone usually suggests signing an antenuptial contract before the civil ceremony so the marriage is out of community of property. Plenty of couples did exactly that, in good faith, on the advice of a notary or a relative. A Constitutional Court judgment handed down in January 2026 has made that plan legally shaky, and anyone in this position needs to understand what changed before signing anything or relying on an agreement they already have.

What the Constitutional Court decided

In VVC v JRM and Others, decided on 21 January 2026, the Constitutional Court dealt with a couple who married under customary law in 2011. Because the husband had no other wives and the marriage was concluded after the Recognition of Customary Marriages Act came into force, the marriage was automatically in community of property, meaning the couple shared a single joint estate. In 2019, the couple signed a document described as an antenuptial contract, stating that their planned civil marriage would be out of community of property with accrual. They married civilly in 2021 without ever dividing the joint estate or asking a court to approve the change. When the marriage broke down and divorce proceedings began in 2022, the husband wanted the antenuptial contract enforced. The wife argued it was never valid in the first place.

The majority of the Court, in a judgment written by Justice Majiedt, agreed with the wife. The Court held that a customary marriage is not dissolved or replaced when the same couple later has a civil ceremony. Instead, the civil marriage is treated as part of one continuous marital relationship that began at the customary ceremony. A civil wedding confirms an existing marriage rather than creating a new one. That reasoning turned out to be decisive for how the Court read the law on antenuptial contracts.

Why the contract signed between the two ceremonies failed

An antenuptial contract, by its nature, has to be signed before the marriage it is meant to regulate. Section 10(2) of the Recognition of Customary Marriages Act deals with couples who marry customarily and later marry civilly, and it refers to changing the property consequences "of their marriage" through such a contract. The Court read those words as pointing back to the customary marriage, not the later civil ceremony, because there is only ever one marriage in this scenario. On that reading, a document signed in 2019, eight years after the 2011 customary wedding, could not be a genuine antenuptial contract. It was, in substance, an attempt to change an existing matrimonial property system after the fact, and that kind of change has its own legal process under section 21 of the Matrimonial Property Act, involving a joint application to court, notice to creditors, and a judge satisfied that nobody will be unfairly prejudiced. A private agreement between the spouses cannot substitute for that process. Because the 2019 document skipped that route entirely, the Court found it invalid, and the couple remained married in community of property despite what they had signed.

What this means if you are already in this position

If you married customarily and then signed what you were told was an antenuptial contract before a later civil wedding, that document is now open to serious challenge. It does not automatically fall away, but a spouse, an executor, or a creditor could argue in a divorce or deceased estate that the joint estate from the customary marriage never actually changed. That has real consequences for how assets, debts, and even inheritance are divided, and it is not something to discover for the first time during a divorce or after a death in the family.

Getting the timing and the process right

The safest route, if you have not yet had your customary ceremony, is to sign the antenuptial contract before that marriage takes place, not before the civil one. If the customary marriage has already happened and no contract was signed beforehand, the couple's only lawful way to move away from community of property is a formal application to court under section 21 of the Matrimonial Property Act. This is not a form you fill in at a notary's office. It requires proper grounds, supporting papers, and a court satisfied that the change will not unfairly harm either spouse or any creditor. Couples who want certainty about how their assets will be treated, particularly where one spouse runs a business or holds significant property, should get advice on this before assuming a private agreement will do the job.

This judgment has unsettled an arrangement many couples across Gauteng assumed was routine, and it will keep surfacing in divorces and deceased estates for years to come. If you were married customarily and are planning, or have already had, a civil ceremony, or if you are dealing with an estate or divorce where this kind of agreement is in dispute, it is worth having the underlying documents reviewed properly rather than guessing at their validity. Levine and Freedman, based in Rosebank, advises clients across Gauteng on antenuptial contracts, deceased estates, and the litigation that follows when these arrangements are challenged. Visit Levine And Freedman to get in touch with the team.