23/01/2026
Many couples wait until they register their marriage at Home Affairs to think about an Antenuptial Contract (ANC). Here is why you are likely "locked-in" to the wrong property system the moment those negotiations end.
1. The "Process" is the Marriage (Section 3 of the RCMA)
In South African law, a customary marriage is a process, not a date on a calendar. Under Section 3(1) of the Recognition of Customary Marriages Act (RCMA) 120 of 1998, a marriage is valid the moment it is negotiated and entered into or celebrated. You don't need a certificate for the law to recognize you as "already married."
2. Lobola acts as the "Legalizer"
While the Act doesn’t explicitly name "Lobola," our courts and the Constitutional Court recognize the payment (or even the agreement of payment) and the subsequent integration of the bride as the point of no return. Once the families reach consensus, you have "entered into" the marriage.
3. The "In Community" Default (Section 7(2) of the RCMA)
Under Section 7(2) of the RCMA, the default position for all customary marriages is In Community of Property. If you haven't signed an ANC before that lobola process concludes, the law automatically merges your estates. You now share every asset—and every debt—your partner has.
4. The ANC Timing Trap (Section 21 of the Matrimonial Property Act)
An Antenuptial Contract MUST be signed before the marriage begins. Because the law sees the completion of Lobola as the start of the marriage, signing an ANC after the negotiations is legally ineffective. You cannot sign an "Antenuptial" (before-marriage) contract when you are already "Post-nuptial" (after-marriage).
5. The High Court Headache 🚫
Once that lobola is paid and the marriage is recognized, you cannot just "sign it later" at a lawyer's office. To change your property system now, you must jointly apply to the High Court under Section 21(1) of the Matrimonial Property Act 88 of 1984. This is an expensive, public process that requires notifying all your creditors and explaining your "sound reasons" to a Judge.
If you want to be married Out of Community of Property, you must sign your ANC with a Notary Public (Attorney) BEFORE the first lobola payment is made.
Don’t let a beautiful tradition lead to an unexpected legal headache!
