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Customary marriages keep property rights after civil marriage ruling
For many South African couples, marriage is not a single moment but a journey. A relationship may begin under customary law and later be formalised through a civil ceremony. For years, confusion has lingered over what that transition means for property, ownership, and financial protection. This week, the country’s highest court finally settled the matter.
On 21 January 2026, the Constitutional Court delivered a landmark judgment that clarified how property rights work when couples move from a customary marriage to a civil one. The ruling has major implications for anyone who has already married traditionally and is considering, or has already entered into, a civil marriage with the same partner.
A case rooted in real-life decisions
At the heart of the case was a couple who married under customary law in 2011. Like many South Africans, they later chose to formalise their union through a civil marriage. Before doing so, they signed an antenuptial contract stating that their civil marriage would be out of the community of property and subject to accrual.
What they did not do was divide the joint estate created by their customary marriage. When the relationship later ended, one spouse relied on the antenuptial contract. The other challenged it, arguing that the agreement was invalid and that the law allowing it was unconstitutional.
That dispute sent shockwaves through the legal system and eventually reached the Constitutional Court.
Why the High Court got it wrong
The High Court had previously ruled that part of the Recognition of Customary Marriages Act was unconstitutional. Its concern was that section 10(2) appeared to allow couples to change their matrimonial property system simply by signing a written agreement, without court oversight. In the court’s view, this could unfairly prejudice economically weaker spouses, most often women.
The Constitutional Court disagreed. Writing for the majority, Justice Majiedt said the High Court’s interpretation misunderstood how the law is meant to work.
The Recognition of Customary Marriages Act, the Court explained, was introduced to undo historical discrimination and place customary marriages on the same legal footing as civil ones. Reading one clause in isolation missed that bigger purpose.
One marriage, not two
The most important clarification from the judgment is this: a customary marriage does not end when the same couple later enters into a civil marriage.
Instead, civil marriage absorbs the customary marriage. In law, there is one continuous marriage that starts under customary law and later becomes governed by civil law. That marriage can end only through death or divorce.
Treating the civil marriage as a fresh start, the Court warned, would undermine the very recognition and protection that customary marriages are meant to enjoy.
Why antenuptial contracts can be risky
This interpretation has serious consequences for couples who sign antenuptial contracts after a customary marriage already exists.
Because the marriage is continuous, spouses cannot change their matrimonial property regime without applying to the court. That process exists to protect both partners and creditors and to prevent one spouse from being unfairly disadvantaged.
In the case before the Court, the antenuptial contract was invalid. Not because the law itself was unconstitutional, but because the couple failed to follow the required legal process.
What legal experts are saying
Legal expert Lucia Bugana, executive director at NLB Attorneys, said the judgment restores the correct reading of the law.
According to Bugana, the Recognition of Customary Marriages Act was specifically designed to protect women by giving them equal status and property rights. Those rights, she explained, do not disappear simply because a customary marriage later becomes a civil one.
The ruling also sends a clear warning. Couples who sign antenuptial contracts after a customary marriage already exists are taking a serious legal risk unless a court approves the change. While this may clash with cultural practices such as lobola negotiations, the legal position is now firmly settled.
Why this matters beyond the courtroom
The decision has sparked strong reactions on social media, with many South Africans welcoming the clarity after years of uncertainty. Others have noted how common it is for couples to move between customary and civil systems without realising the legal consequences.
At its core, the judgment reinforces a powerful message. Customary marriages are not second-class. They are fully recognised, continuous, and protected under South African law. Court oversight is not a technical obstacle but a safeguard designed to ensure fairness when property rights are at stake.
For couples navigating marriage in modern South Africa, that clarity could not have come at a better time.
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Source: Business Tech
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