How ConCourt ruling affects property ownership in customary marriages

The Constitutional Court has provided clarity on how to divvy up the spoils in the event of a customary marriage, followed by a civil union, ending in divorce.

The case arose from a divorce dispute between a couple who entered into a customary marriage in 2011, which by law meant they were married in community of property – in other words, assets acquired during the marriage were jointly owned and shared equally.

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In 2019, the couple signed an antenuptial contract (ANC) introducing an out-of-community-of-property regime with accrual, which was registered.

They then solemnised the customary marriage with a civil one in 2021.

An ANC with accrual means the couple only shares in the growth, or accrual, of assets during the marriage. The divorcing spouse has no claim to assets accumulated by the other spouse prior to the marriage.

In this case, when the couple divorced in 2022, they disagreed on which property regime applied and whether the ANC had validly changed things.

High court ruling

The Pretoria High Court previously ruled that the ANC signed by the husband and wife violated the Constitution by allowing a mid-marriage change to the property system without any judicial oversight, as required under the Matrimonial Property Act.

It further ruled that Section 10(2) of the Recognition of Customary Marriages Act was unconstitutional.

Read: Understanding spousal status and marital regimes in financial and estate planning [2025]

The legal position of traditional marriages changed when the Recognition of Customary Marriages Act was passed in 1998, placing customary unions – including polygynous ones – on an equal footing with civil ones.

ConCourt majority judgment

In a majority judgment, the Constitutional Court ruled that, under Section 10(2) of the Recognition of Customary Marriages Act, the civil marriage defaults to ‘in community of property’ unless there was already a valid ANC in place before the customary marriage that excluded it.

You cannot use a new ANC signed after a customary marriage (but before the civil one) to automatically switch the property regime without proper judicial safeguards.

Any mid-marriage change to the property system still needs court approval under Section 21 of the Matrimonial Property Act in order to protect spouses and creditors.

Read: Glossary of the different marital regimes in SA [2023]

In effect, the ruling means that any property regime change during marriage must comply with Section 21 of the Matrimonial Property Act.

You cannot sneak in an ANC mid-marriage, have your spouse sign it, and expect to walk away with most of the spoils after divorce.

The court must be involved in this process to ensure equal protection for both parties.

The ConCourt’s interpretation protects equality between customary and civil marriages, prevents sneaky or unfair deprivations of property rights, and aligns with the Constitution.

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