Recent developments, particularly the Constitutional Court judgment of 21 January 2026, have provided important clarity on how South African law treats the relationship between customary marriages and subsequent civil marriages. As with all matrimonial matters, the application of these principles remains fact-specific and subject to judicial oversight.
The Court confirmed that a customary marriage does not terminate when the spouses later enter into a civil marriage. Instead, the civil marriage “subsumes” the customary marriage, meaning the law regards the unions as one continuous marriage rather than separate or sequential relationships.
This ruling has significant implications for matrimonial property regimes:
All customary marriages are automatically in community of property, unless the spouses execute a valid antenuptial contract before concluding the customary marriage. This remains the default position under the Recognition of Customary Marriages Act (RCMA).
A couple cannot retroactively change their property regime after entering into a customary marriage by simply signing an antenuptial contract before a later civil ceremony. Failure to follow the correct legal process renders such a contract invalid, as confirmed in the 2026 Constitutional Court case.
This judgment underscores the importance of understanding when a valid customary marriage is concluded, as cultural practices such as lobola negotiations and traditional ceremonies may trigger a binding marital relationship with full legal consequences.
Key takeaway:
Couples who intend to marry out of community of property must execute an antenuptial contract before the customary marriage is concluded. Once a customary marriage exists, its property regime cannot be altered merely by entering a later civil marriage.
Chris Fick & Associates Inc.
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