Constitutional Court ruling: antenuptial contracts after customary marriage now valid

THE Constitutional Court's landmark ruling on antenuptial contracts signed after customary marriages affects thousands of South African couples and could lead to significant financial implications for those who followed this marriage pattern.

Family law expert Bertus Preller explains the far-reaching consequences for matrimonial property rights, divorce proceedings, and financial institutions.

He said that couples who followed a similar pattern — first entering into a customary marriage, then signing an antenuptial contract, and finally a civil marriage — would be affected.

The court declined to confirm a previous order of constitutional invalidity made by the Gauteng High Court, which had declared Section 10(2) of the Recognition of Customary Marriages Act unconstitutional.

The majority of the ConCourt held that this section does not allow a change in the matrimonial property regime without judicial oversight.

The ruling was prompted by a couple who entered into a customary marriage in 2011, signed an antenuptial contract in 2019, and then married civilly in 2021.

Upon divorce a year later, a dispute arose regarding their property regime. Preller explained that the core issue was whether the antenuptial contract signed in 2019 was valid and enforceable.

The majority judgment, written by Judge Steven Majiedt and supported by five other judges, found the antenuptial contract invalid. They reasoned that when the contract was signed, the parties were already married under customary law.

Their customary marriage, concluded without an antenuptial contract, was automatically in community of property according to Section 7(2) of the Act. 

The majority held that an antenuptial contract must be concluded prior to the marriage it regulates.

Preller noted that at the time of signing the 2019 contract, the parties were existing spouses, not intended spouses. What they signed was effectively a postnuptial contract, which under South African law requires judicial oversight.

The law mandates that parties must make a joint application to the court, disclose all assets and liabilities, and satisfy the court that there are valid reasons for changing their matrimonial property regime without prejudice to any party. This process is designed to protect economically weaker spouses and creditors, Preller said.

Since the parties did not follow this procedure, the majority judgment ruled their antenuptial contract invalid and unenforceable. Consequently, they remained married in community of property throughout both their customary and civil marriages.

Preller explained that all assets accumulated since their customary marriage in 2011 are part of a joint estate, with each spouse owning an undivided half share.

“This could have significant financial implications.”

Assets that JRM (the husband) believed were separate property under the antenuptial contract are actually jointly owned with VVC (the wife). This includes assets accumulated during their eight years of customary marriage and those acquired during their civil marriage after 2021.

The husband initiated divorce proceedings in May 2022, seeking enforcement of the antenuptial contract. The wife argued the antenuptial contract was invalid.

Three judges dissented, asserting that the antenuptial contract was valid and that spouses can execute such a contract after customary marriage but before civil marriage.

The dissent argued that civil marriage is a distinct legal event and that spouses should have the autonomy to structure their matrimonial property affairs.

However, the dissent is not binding law. The majority judgment emphasised the historical discrimination against customary marriages and the vulnerability of black women in such marriages.

Judicial oversight is required to protect vulnerable spouses from being pressured into relinquishing property rights.

This ruling could affect thousands of couples who followed the same pattern of marriage. All antenuptial contracts executed in this manner are potentially invalid unless a court order was obtained under Section 21 before execution, Preller said.

“Many high-net-worth divorces currently in court will be impacted, leading to increased litigation as economically weaker spouses challenge previously accepted antenuptial contracts.”

Financial institutions that extended credit to individuals married under customary law followed by civil marriage must review their loan portfolios.

If a borrower presented a registered antenuptial contract as proof of being married out of community of property, the bank may have security over assets that are actually jointly owned. The spouse who did not sign the security documentation would not be bound by it and could assert a half share in the secured property, Preller explained.

“Conversely, a spouse who believed they were married out of community of property may face severe consequences, including liability for half of the other spouse's debts incurred during what they thought was a separate property marriage.”

The litigation consequences will resonate through family law courts for years to come, Preller said.

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