In the wake of the Constitutional Court judgment delivered on customary marriages and antenuptial contracts, public discourse has been flooded with confusion, alarm, and a misplaced fear of “retrospective application”. Much of this reaction is legally unfounded.
The truth is simple: the law has always been clear.
The Constitutional Court did not introduce a new legal principle. It merely confirmed a long-standing and settled position in South African Law.
The Legal Position Has Always Been Clear
Under the Recognition of Customary Marriages Act 120 of 1998, a customary marriage is automatically deemed to be a marriage in community of property unless the parties entered into and concluded an Antenuptial Contract (ANC) prior to the marriage. If no ANC was concluded before the customary marriage, the parties must apply to court before the marriage to regulate their matrimonial property system differently.
Once a customary marriage is validly concluded, the matrimonial property regime comes into existence by operation of law.
It follows that:
You cannot sign an antenuptial contract after a customary marriage has already been entered into, this has never been permissible in law.
Section 86 of the Deeds Registries Act 47 of 1937 (as amended) clearly states that ANCs not registered in accordance with Section 87 will have no force or effect against persons not party to the contract.
Section 87 stipulates that ANCs must:
- be attested by a notary; and
- be registered in the Deeds Registry within 3 months of its execution.
Section 87 therefore contains the legislative requirements for a valid ANC.
An antenuptial contract is, by definition, a contract entered into before marriage. Once the marriage exists, the appropriate legal mechanism to change the matrimonial property system is not a post-marriage antenuptial contract, but a court application in terms of Section 21 of the Matrimonial Property Act 88 of 1984 (as amended), which will result on a Postnuptial Agreement.
In light of these provisions, it is clear that the statutory framework governing marriages must take precedence over the parties’ intentions, especially when the parties understand that marrying without an Antenuptial Contract (ANC) result in a marriage in community of property, including profit and loss sharing. If the parties were genuinely unaware of this consequence, Section 21 of the Matrimonial Property Act (MPA) provides a mechanism to adjust their matrimonial property regime. Additionally, Sections 86 and 87 emphasise that an ANC must be concluded prior to the marriage ceremony. Interpreting these provisions otherwise would lead to an illogical and unreasonable outcome and this has been the legal position for decades.
What the Constitutional Court Actually Did?
- The Constitutional Court did not “invalidate” antenuptial contracts retrospectively.
- It did not introduce a new interpretation.
- It did not shift the legal landscape.
It simply confirmed that:
- A customary marriage cannot be undone or overridden by a later civil marriage;
- When a customary marriage is converted to a civil marriage, the legal system governing the marriage changes, but the marriage itself does not end. By entering into a civil marriage under the Marriage Act, spouses choose to have their marriage governed by common law instead of customary law. Antenuptial contracts can only be signed before the marriage, not during it. Since the marriage continues through this change, spouses cannot create a new antenuptial contract at that time. To modify the matrimonial property system after marriage, spouses must apply for permission under section 21 of the Matrimonial Property Act;
- Parties cannot bypass statutory protections by signing contracts after the marriage; and
- Any change to a matrimonial property regime requires judicial oversight, precisely to prevent prejudice and exploitation.
In other words, the Court reaffirmed what the legislation already says.
Why the Question of Retrospectivity Is Misplaced?
The question now being asked by the public “Will this judgment apply retrospectively?”, truly reflects a fundamental misunderstanding of how the law works.
Retrospective application only becomes relevant when:
- A new rule is introduced; or
- A previously lawful practice is declared unlawful.
It is crucial to note that neither occurred here. If something was never lawful to begin with, it cannot suddenly become “invalid retrospectively”. It was always invalid.
In this regard the Constitutional Court did not take away rights. It clarified that certain “rights” people believed they had never existed in law.
Why This Judgment Matters (But Not for the Reasons Being Claimed)?
The real significance of the judgment lies not in changing the law, but on clarifying legal certainty about how property regimes apply when people marry traditionally and later marry under civil law. This judgement is critically important and has officially dispelled the persistent misconceptions, that antenuptial contracts signed after a customary marriage is concluded are valid.
Conclusion
The Constitutional Court did not introduce a new principle. It confirmed a position that has always existed in South African law.
Under the Recognition of Customary Marriages Act 120 of 1998, a customary marriage automatically results in a marriage in community of property, unless the parties obtain court approval before the marriage to regulate their matrimonial property system differently.
Once a customary marriage is concluded, the matrimonial property regime is established by operation of law.
For this reason, it has never been legally permissible to enter into an antenuptial contract after a customary marriage has already come into existence. An antenuptial contract is, by definition, concluded before marriage. Where parties wish to change their matrimonial property system after marriage, the only lawful route is a court application under section 21 of the Matrimonial Property Act.
The Constitutional Court merely reaffirmed this settled legal framework.
This is why the question of “retrospective application” is misplaced. Retrospectivity only arises where a new rule is introduced or a previously lawful practice is rendered unlawful. That did not happen here. A post-customary-marriage antenuptial contract was never valid in law.
What this judgment does achieve is clarity. It reinforces the legal status of customary marriages, affirms their equality, and protects spouses from having their proprietary rights altered without judicial oversight.
In short:
There is no new law.
There is no retrospective effect.
There is only confirmation of what the law has always been.
Prepared by:
Philasande Memela
Executive Director | MKS INC Attorneys Legal Practitioner specialising in Family Law and Commercial Litigation