Saying I Do

Daly Morris Fuller Attorneys Conveyancers & Notaries

Thinking of “Saying I Do” Under African Customary Law? Know the Legal Consequences.

While love and tradition are central to African customary marriages, the legal consequences are equally significant. In 2026, the legal position relating to customary unions is cleare and more important to understand than ever before.

On 21 January 2026, the Constitutional Court of South Africa delivered a landmark judgment in VVC v JRM and Others [2026] ZACC 2, reaffirming that customary marriages and civil marriages enjoy equal legal status. The Court confirmed that where parties to a customary marriage later conclude a civil marriage with each other, the customary marriage is not dissolved. Rather, the relationship constitutes one continuous marital union.

What Happens to Your Property?

By default, all customary marriages are in community of property, meaning that assets and liabilities are shared equally between the spouses.

Before the Wedding (Antenuptial Contract)
If you intend to be married out of community of property, an Antenuptial Contract (ANC) must be executed before the conclusion of the customary marriage. This must occur prior to the completion of customary rites, such as lobola negotiations or the formal handing over of the bride.

The “Mid-Marriage” Trap
An ANC cannot simply be signed years later when the marriage is “registered” or when the parties elect to have a civil ceremony. The Constitutional Court has made it clear that an ANC concluded after the customary marriage is invalid, unless sanctioned by a court order.

Postnuptial Changes to the Matrimonial Regime
Spouses who are already married and wish to change their matrimonial property system, for example, to protect a business interest, must apply to the High Court in terms of section 21(1) of the Matrimonial Property Act, which comes at a high financial costs. This process requires:

  • Valid and sound reasons for the proposed change;
  • Notice to all creditors; and
  • Proof that no party will be prejudiced by the amendment.

Understanding these legal principles before—or even during—a customary marriage is essential to protecting both your rights and your future.