Zuko Komisa
- The Court held that a valid customary marriage is automatically in community of property unless an ANC is signed beforehand.
- Subsequent civil ceremonies and new contracts cannot unilaterally strip a spouse of their accrued rights to a joint estate.
- The ruling aims to protect financially weaker spouses from being pressured into unfair property regimes after a union has already begun.
The Constitutional Court has clarified that couples married under customary law cannot validly conclude an antenuptial contract (ANC) after their customary marriage to change their property regime from in community of property without first obtaining a High Court order.
Any ANC signed after a valid customary marriage even before a later civil ceremony is treated as a postnuptial contract and requires judicial approval to be effective.
Under South African law, a customary marriage is automatically in community of property unless the spouses sign an ANC before the marriage is legally concluded.
If no valid antenuptial contract is executed before the customary marriage, the couple’s estates merge into a joint estate by default.
The Constitutional Court’s ruling reinforces protections for spouses, particularly those who may be economically disadvantaged, by preventing the unilateral alteration of matrimonial property rights through agreements concluded after the union has begun without oversight.
Legal experts say this judgment will influence how couples plan marriages combining customary and civil elements, emphasising that property contracts must be executed before the customary union is finalised if couples wish to exclude community of property.
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