On 21 January 2026, the Constitutional Court delivered a ruling that upended a previous High Court decision and reaffirmed an important point about customary marriages. While it upheld the existing law, the court made it clear that once you’re in a customary marriage, you can’t just switch things up later without following the proper legal steps.
In the case that sparked this judgment, a couple married traditionally under customary law in 2011 and later opted for a civil marriage in 2021. Before the civil ceremony, they signed an antenuptial contract saying their civil union would be out of community of property and governed by accrual. But they never actually separated their joint estate from the earlier customary marriage — and when the relationship collapsed, that misstep became a legal headache.
The Constitutional Court held that customary marriage doesn’t simply end when you get civilly married. A civil marriage effectively absorbs the existing relationship under the law, creating one continuous marriage. Treating civil marriage as an end to customary marriage, the court said, would undermine the very purpose of the Recognition of Customary Marriages Act and revive discrimination against customary unions.
That means the antenuptial contract the couple signed after the customary marriage wasn’t valid — not because the law itself was unfair, but because they failed to get the legal basics right.
With customary marriages now confirmed by the court to automatically be in community of property, the estate-planning consequences are huge.
Standard Bank and Liberty experts point out that once families meet, lobola (Mahadi) negotiations conclude, and celebratory rituals take place — even before a white wedding — South African law treats the union as a valid customary marriage.
That has big implications: if you don’t sign and register an antenuptial contract before those traditional steps, you automatically default into community of property. Decades down the line — whether it’s divorce or death — your spouse can lay claim to half your estate.
Liberty’s senior legal specialist, Faeeza Khan, says this ruling goes further than before: any antenuptial contract signed after entering a customary marriage now risks being invalid. That makes it critical to decide upfront what marital property regime applies and to formalise it before families get involved.
Standard Bank’s Head of Insurance, Shaka Zwane, underscores that what you sign or don’t sign today could determine how assets are shared years from now.
In short: if you’re planning to get married in South Africa — especially after a customary union — don’t leave your property plans to chance. Investigate your full marital history, get legal advice early, and make sure your contracts check all the legal boxes.
