Customary marriages in South Africa are governed by the Recognition of Customary Marriages Act 120 of 1998. A customary marriage entered into in compliance with the Act is recognised as a valid marriage, and the default matrimonial property regime is in community of property unless the parties’ antenuptial contract provides otherwise.
For couples who concluded a customary marriage and were later married in a civil ceremony, the Constitutional Court has now confirmed how the two ceremonies are to be understood — and what the route to change the regime is. This page explains the position in plain language.
The page is general information. The position in any particular customary-marriage matter depends on the facts and we assess each enquiry individually.
THE TWO LEGAL POSITIONS
Customary marriage by itself
A valid customary marriage concluded under the Recognition of Customary Marriages Act 120 of 1998 is, by default, a marriage in community of property between the spouses. The spouses may exclude the consequences of community of property by an antenuptial contract concluded before the customary marriage.
Customary marriage followed by a civil marriage
In the past, there was uncertainty about how to treat a customary marriage followed by a civil ceremony between the same parties. The Constitutional Court has now resolved that uncertainty.
In VVC v JRM and Others (CCT202/24) [2026] ZACC 2; 2026 (3) BCLR 234 (CC); 2026 (3) SA 1 (CC), delivered on 21 January 2026, the Constitutional Court (Majiedt J) held:
- A customary marriage followed by a civil marriage between the same parties is a single, continuous marriage.
- The civil ceremony is declaratory, not constitutive. It does not start a new marriage. It is a formal acknowledgement of the marriage that already exists.
- An “antenuptial contract” signed after the customary marriage but before the civil ceremony is invalid. It cannot operate as an antenuptial contract because, by the time it is signed, the parties are already married.
- The only valid mechanism to change the matrimonial property regime of such a marriage is a section 21 application under the Matrimonial Property Act 88 of 1984.
The Constitutional Court put it this way:
“[T]he marriage between the parties was a single, continuous marriage that began as a customary marriage and later became governed by civil law upon the conclusion of a civil marriage. The change was declaratory rather than constitutive.”
And:
“Parties are thus afforded the option of utilising the procedure afforded by section 21 of the MPA, and are compelled to use this provision for any change to their marital property regime to be effectual.”
WHAT THIS MEANS FOR YOU
If you are in a customary marriage and wish to change the matrimonial property regime, the route is a section 21 application. The same is true if you concluded a customary marriage and were later married in a civil ceremony, and now wish to change the regime that took effect at the customary marriage.
If you signed an antenuptial contract between the customary rites and the civil ceremony, the position is more sensitive. On the authority of the Constitutional Court, that antenuptial contract is invalid. Our office assesses each such matter on its own facts. The relief available, where the spouses wish to bring the regime in line with their original intention, is a section 21 application — not the registration of the invalid antenuptial contract.
We deal with these matters carefully. The application papers must set out the facts of the customary marriage and the civil ceremony, cite VVC v JRM and Others, and aver that the customary marriage commenced the matrimonial property regime in community of property which carried over into the civil marriage. The proposed notarial postnuptial contract is drafted on the standard prospective basis with the mandatory creditor-protection clause.
A NOTE ON LOBOLA AND CUSTOMARY-MARRIAGE EVIDENCE
For a section 21 application built on a customary marriage, the application papers should attach the available evidence of the customary marriage:
- the lobola letter or family declaration confirming negotiations and conclusion of the marriage;
- the registration of the customary marriage at Home Affairs, if registered;
- the marriage certificate for the civil ceremony;
- any contemporary documentary record of the date of the customary marriage; and
- a statement of the date and place of the customary marriage in the founding affidavit.
Where the customary marriage has not been registered at Home Affairs, that does not invalidate the marriage; the registration is administrative, not constitutive. The position is, however, more straightforward where the marriage has been registered.
IF AN ANC WAS SIGNED BETWEEN THE CEREMONIES
This is a sensitive scenario and we approach it carefully. If you signed an antenuptial contract after a customary marriage but before the civil ceremony:
- The antenuptial contract is invalid for that purpose, on the authority of the Constitutional Court.
- The matter is not appropriate for an automated or template approach.
- Our office assesses the matter individually before any application is drafted.
- The route to change the regime is a section 21 application. The application papers expressly address the invalidity of the purported antenuptial contract and rely on the Constitutional Court’s ruling.
If this is your position, please complete the online application and identify the dates of the customary marriage, the date the antenuptial contract was signed, and the date of the civil ceremony. Our office will revert to you with an assessment.
CUSTOMARY MARRIAGE WITHOUT A CIVIL CEREMONY
Where there has been a customary marriage only (no later civil ceremony), the position is the same in substance: the default regime is in community of property unless excluded by an antenuptial contract concluded before the customary marriage. If the spouses now wish to change that regime, the route is a section 21 application. Our office assesses each such matter on its own facts.
If you and your spouse are in a customary marriage (with or without a later civil ceremony) and wish to consider a change of regime, please complete the online application. Identify the customary-marriage facts in the relevant section so that we can assess the matter properly.