By Aphile Jabavu / Associate / Mooney Ford Attorneys

In a judgment handed down on 21 January 2026, VVC V JRM AND OTHERS [2026] ZACC 2, the constitutional court settled a question that sits at the crossroads of customary law, civil marriage, and property rights. The ruling has direct consequences for any couple who plans to celebrate a customary marriage first and formalise it through a civil ceremony later which, in South Africa, describes a very large number of people.

One marriage, not two

The most important principle confirmed by the court is this: when a couple who concludes customary marriage ceremonies later enters into a civil marriage with each other, they are not starting a new marriage. The civil ceremony does not terminate the customary marriage and replace it. Instead, the two merge, the customary marriage is absorbed into the civil one, creating a single, continuous marriage that began the moment customary practices are concluded and completed.

Why your ANC timing is everything

An antenuptial contract, by its very nature, must be entered into before a marriage exists. Once the customary marriage customs have been concluded, you are already married. Any agreement you sign after that point even if you intend it to regulate a future civil ceremony is not a true antenuptial contract. The constitutional court was emphatic on this point: calling such an agreement “antenuptial” is a legal misnomer.

The risk of signing an ANC after customary proceedings are finalised but before the civil ceremony

This is where the gap between cultural practice and legal reality is most dangerous. Many couples and their families treat the period between the lobolo celebration and the church or magistrate’s office as a kind of legal grey zone. It is not. From the moment the customary marriage formalities are complete, the couple is married in community of property by default, and a joint estate exists.

What couples should do

If you are planning both a customary marriage and a civil marriage, the sequence matters as much as the substance. Your antenuptial contract must be signed before your customary marriage is concluded, before the formalities are finalised and before the celebration takes place. That is the only window in which an ANC is legally effective.

Too late? Don’t worry, you can make an application for a post-nuptial agreement

A postnuptial agreement is a contract that changes how a married couple’s property is divided but signed after the marriage already exists. Unlike an antenuptial contract, it cannot simply be written up and signed between the two of you. The law requires you to apply to the High Court together, disclose your finances honestly, and notify anyone you owe money to. A judge must approve the change before it takes effect. If you are not sure whether an agreement you have already signed is valid, find out now. Knowledge is power and gives you an opportunity to find a solution. Many couples only discover a problem during divorce proceedings, and by then it is far more expensive and far more stressful to fix.

Photo by Hoi An and Da Nang Photographer on Unsplash