28/01/2026
Customary Marriage and Prenups: What the Constitutional Court Ruling Means for You:
Many South Africans are surprised to learn that marriage is not only a cultural or personal decision — it is also a legal one with serious financial consequences. A recent Constitutional Court ruling has brought much-needed clarity on an issue that affects thousands of couples: Can you sign a prenuptial agreement after a customary marriage?
The short answer is no. Below, we explain what the Court decided, why it matters, and what couples should know going forward.
Understanding Customary Marriage in Law
Under South African law, a marriage concluded in terms of customary law is fully recognised and carries the same legal weight as a civil marriage.
One of the most important legal consequences of a customary marriage is that it is automatically in community of property, unless steps are taken before the marriage to agree otherwise.
Being in community of property means: - Both spouses share assets equally - Both spouses share liabilities and debts - Property acquired before and during the marriage forms part of the joint estate
This system exists largely to protect spouses, particularly those who may be financially vulnerable.
The Common Misunderstanding
Many couples believe that they can:
1. Enter into a customary marriage, and then
2. Later register a civil marriage, and
3. Sign a prenuptial (antenuptial) contract to change their property system
This belief is incorrect.
Registering a civil marriage does not cancel or replace a customary marriage. The customary marriage continues to exist, along with its legal consequences.
What the Constitutional Court Decided
The Constitutional Court ruled that antenuptial contracts signed after the conclusion of a customary marriage are invalid.
In other words, once a customary marriage exists, spouses cannot privately agree to change their matrimonial property regime by signing a prenup later.
