Marriage is both a legal and cultural institution, and in South Africa, couples entering into customary marriages must be aware of the legal implications regarding marital property regimes. While civil marriages automatically allow for the signing of an antenuptial contract, the rules governing customary unions are more complex. A common question that arises is: "Can an antenuptial contract be signed after a customary marriage?" The short answer is no—unless court approval is obtained.

To fully grasp how customary marriages impact property ownership and financial rights, it is important to understand the Recognition of Customary Marriages Act (RCMA) and how it governs the default matrimonial property system. Before getting married, couples should carefully consider their options to avoid unintended legal and financial consequences.

The Legal Framework of Customary Marriages and Property Rights

In South Africa, the Recognition of Customary Marriages Act (RCMA) governs customary marriages, ensuring they are legally recognized alongside civil unions. However, an important aspect of these marriages is the default matrimonial property regime that applies unless a couple actively chooses otherwise.

By law, unless an antenuptial contract is signed before the marriage, a customary marriage is automatically considered in community of property. This means that:

• All assets and debts are shared equally between both spouses.
• Any property acquired before or during the marriage forms part of a joint estate.
• Major financial decisions, such as selling property or taking on debt, require the consent of both partners.

This system provides financial unity but can also lead to complications, particularly in cases of divorce, inheritance planning, or individual asset protection. For this reason, many couples opt for an antenuptial contract to maintain financial independence.

However, if a couple has already entered into a customary marriage, they may wonder: "Can you do a prenup after lobola?" The legal position is clear—once the marriage is formalized, the couple cannot simply sign an antenuptial agreement retroactively. Instead, a court order is required to alter the matrimonial property regime.

When Must an Antenuptial Contract Be Signed?

In South African law, an antenuptial contract must be signed before the marriage is legally concluded. This applies to both civil and customary marriages, meaning that couples who wish to exclude the default "in community of property" system must finalize their antenuptial contract before getting married.

If the contract is not signed in advance, the couple will automatically be married in community of property, unless they later apply to the court to change their matrimonial property system. This raises an important question:

Can an Antenuptial Contract Be Signed After a Customary Marriage?

The simple answer is no, unless the couple obtains a court order. Many couples mistakenly assume that they can sign an antenuptial contract after a customary marriage ceremony, particularly if their union is later formalized under the Marriage Act 25 of 1961. However, South African courts have ruled that an antenuptial contract signed after a customary marriage is invalid unless judicial approval is granted.

This was established in the case of JRM v VVC, where the court held that:

• If a couple fails to sign an antenuptial contract before the customary marriage, they cannot validly register one before the subsequent civil marriage.
• Any contract signed after the marriage is considered a postnuptial contract, which requires court approval to be executed and registered.

Thus, couples who wish to marry out of community of property must ensure that their antenuptial contract is properly executed before the lobola negotiations or customary marriage ceremony. Failing to do so means that their marriage will default to in community of property, requiring a court application to change it at a later stage.

Changing the Matrimonial Property Regime After Marriage

For couples who did not sign an antenuptial contract before their customary marriage, the law provides a way to change their matrimonial property regime—but it is not a simple process. Once a marriage has been legally concluded, the only way to change from in community of property to out of community of property (with or without accrual) is by applying to the High Court for approval.

This court process is governed by Section 21(1) of the Matrimonial Property Act 88 of 1984, which allows married couples to apply for permission to change their marital property system. However, the court will only approve the application if the couple can prove the following:

1. Both spouses fully agree to the change and understand its implications.
2. Creditors and third parties will not be prejudiced by the change (i.e., the couple must ensure that changing their marital system is not being done to escape financial obligations).
3. A valid reason exists for wanting to change the matrimonial property system.

Why Changing the Property System Can Be Complicated

Unlike signing an antenuptial contract before marriage, which is a straightforward process handled by a marriage law attorney, applying for a postnuptial change requires a court application that involves:

• Drafting a formal notice to the High Court.
• Publishing the intent to change the marriage system in a government gazette and newspapers to notify creditors.
• Obtaining written consent from creditors, if applicable.
• Presenting a compelling case to the court, explaining why the change is necessary.

This process can be costly and time-consuming, which is why legal experts strongly advise couples to finalize their antenuptial agreement before marriage rather than dealing with complex court proceedings later.

Planning for Marriage Property Rights

Understanding the legal implications of customary marriages and marital property systems is essential for couples who want to protect their financial interests, assets, and future property rights. South African law treats marriage contracts as binding agreements, which means that failing to sign an antenuptial contract before marriage can have long-term financial consequences.

Why Proper Legal Planning Matters

Couples planning to enter into a customary marriage should take the following steps to ensure their property rights are structured in a way that aligns with their financial goals:

1. Consult a marriage law attorney before finalizing the marriage – A legal expert can explain the differences between in community of property, out of community of property with accrual, and out of community of property without accrual, helping couples make an informed decision.
2. Draft and register an antenuptial contract before the customary marriage ceremony – Since an antenuptial contract cannot be signed after the marriage without a court order, this step is crucial for those who want to retain financial independence.
3. Ensure the antenuptial contract complies with legal requirements – The contract must be signed in front of a notary and registered with the Deeds Office within the legally prescribed timeframe.
4. Understand how customary and civil marriages interact – If a couple marries under customary law and later formalizes the marriage under the Marriage Act, they must ensure that their property rights remain structured as intended.
5. Plan for long-term financial security – Having the right marriage contract in place affects more than just property purchases—it also impacts inheritance planning, debt liability, and financial protection in the event of divorce.

For couples who did not sign an antenuptial contract before their customary marriage, the option to apply for a court order to change their matrimonial property system remains available, but it is a complex and costly process. Proactively structuring property rights before marriage can prevent unnecessary legal complications in the future.

Aucamp Attorneys – Customary Marriage Law Experts

The legal and financial implications of customary marriages are often overlooked until they become a source of complication or dispute. Many couples only realize the significance of their marital property regime when facing financial decisions, property transactions, or unexpected life changes. By then, rectifying a default marriage contract can be a complex and costly process, requiring court intervention.

Seeking legal advice before marriage ensures that both partners fully understand how their chosen marital regime will affect their property ownership, debt liability, and financial future. Whether you intend to register an antenuptial contract, confirm your marriage’s legal standing, or restructure your property system through a court application, it is best to address these matters before they become legal hurdles.

At Aucamp Attorneys, we help couples structure their marriage contracts with clarity and legal certainty, ensuring that they enter marriage with their financial interests protected. If you are considering customary marriage, need assistance with an antenuptial contract, or have questions about altering your existing marital property regime, consult our legal team for reliable, practical guidance before making lifelong commitments.