Can An Antenuptial Contract Be Signed After Customary Marriage?

No — an antenuptial contract cannot validly be signed after a customary marriage has been entered into. The Constitutional Court in VVC v JRM and Others (CCT202/24) [2026] ZACC 2 held that antenuptial contracts are by definition contracts made in contemplation of an imminent marriage, and that a customary marriage under the Recognition of Customary Marriages Act 120 of 1998 is itself a valid marriage for matrimonial-property purposes — once a customary marriage exists, the spouses’ property regime is fixed and cannot be altered retroactively by an antenuptial contract. Spouses who already concluded an ANC after their customary marriage should treat the contract as having no legal effect and consult an attorney about regularising their matrimonial property regime through the correct route (civil conversion or court application).

The Short Answer

• No — an antenuptial contract signed after a customary marriage has been entered into is not legally valid.
• The Constitutional Court in VVC v JRM and Others (CCT202/24) [2026] ZACC 2 is the controlling authority on this question.
• The ruling applies nationally and binds every court in South Africa, regardless of the province in which the customary marriage was concluded.

Why an Antenuptial Contract Cannot Be Signed After a Customary Marriage

An antenuptial contract is by definition a contract concluded before a marriage, in contemplation of an imminent marriage — the term “antenuptial” (before the nuptials) is the legal characterisation. The Constitutional Court in VVC v JRM treated the document signed in that case as a postnuptial agreement because it was executed after the customary marriage had already been concluded, and a postnuptial change to the matrimonial property regime requires judicial oversight, not just a notarial contract.

Once a customary marriage exists, the spouses’ matrimonial property regime is already determined under the Recognition of Customary Marriages Act 120 of 1998 and the Matrimonial Property Act 88 of 1984. Section 7(2) of the Recognition Act (as substituted by the Recognition of Customary Marriages Amendment Act 1 of 2021) provides that a monogamous customary marriage is a marriage in community of property and of profit and loss between the spouses, unless that consequence is specifically excluded by an antenuptial contract which regulates the matrimonial property system of their marriage. The statutory phrase “their marriage” points to a marriage yet to be concluded — the ANC must attach to a future marriage, not to one already in existence.

An ANC signed afterwards cannot retroactively alter that regime — there is no “marriage” left in contemplation for it to attach to. The Constitutional Court also confirmed that customary marriages and civil marriages are constitutionally equal, which forecloses any argument that customary marriages sit outside the matrimonial-property regime that requires an antenuptial contract to be pre-nuptial.

The Statutory Framework

The legal position rests on three pieces of legislation and the Constitution:

Instrument	Role
Recognition of Customary Marriages Act 120 of 1998	Gives full legal recognition to customary marriages and governs their property consequences. Section 2 recognises a customary marriage “for all purposes” as a marriage; section 7(2) sets the default community-of-property regime; section 10 governs conversion of a customary marriage to a civil marriage.
Matrimonial Property Act 88 of 1984	Governs matrimonial property regimes in South Africa, including the requirement for an antenuptial contract to change the default community-of-property regime, and section 21 sets out the court-supervised process for changing an existing regime.
Constitution of the Republic of South Africa, 1996	Section 9 (equality) and section 15 (cultural rights) underpin the constitutional equality of customary and civil marriages confirmed in VVC v JRM.

Section 7(2) of the Recognition of Customary Marriages Act is the statutory anchor for treating customary marriages as fully recognised marriages — and, critically, it pegs the default regime to a community-of-property outcome that can only be displaced by an antenuptial contract concluded before the marriage is entered into.

What If You Have Already Signed an ANC After a Customary Marriage?

• The contract should be treated as having no legal effect on the spouses’ matrimonial property regime.
• It does not convert the marriage into a marriage out of community of property, and it does not exclude any asset from the joint estate.
• The spouses remain bound by the default matrimonial property regime applicable to their marriage (community of property, unless a court has ordered otherwise).
• An attorney should be consulted to assess whether regularisation is needed and, if so, by which route (see “What you can do instead” below).

What You Can Do Instead — The Available Routes

If the ANC route is foreclosed, the following options remain available for spouses who want to change or clarify the matrimonial property regime that applies to their customary marriage:

Goal	Available Route
Change the matrimonial property regime after a customary marriage	Apply to court under section 21 of the Matrimonial Property Act 88 of 1984 (made applicable to monogamous customary marriages by section 7(5) of the Recognition Act) for an order changing the regime. Court approval is required, not an ANC.
Convert a customary marriage to a civil marriage	Apply under section 10 of the Recognition of Customary Marriages Act for the conversion. An antenuptial contract can be signed at the point of conversion to set the new civil marriage’s property regime, but it does not back-date to before the customary marriage.
Confirm the matrimonial property regime in writing for clarity	A notarial contract or court order confirming the existing regime. This is a declaratory step, not a change of regime, and does not require pre-nuptial timing.

The Civil Conversion Route (Where an ANC Can Still Be Useful)

A customary marriage can be converted to a civil marriage under section 10 of the Recognition of Customary Marriages Act. At the point of conversion, the spouses may sign an antenuptial contract to govern the civil marriage going forward. The ANC applies to the new civil marriage, not retroactively to the customary marriage that preceded it.

The conversion itself does not change the matrimonial property regime of the pre-existing customary marriage — the two are distinct legal events. Spouses who convert should be aware that the customary marriage’s joint estate is not automatically divided by the conversion; whatever assets accrued under the customary marriage remain subject to the regime that applied to it, and the new ANC governs the civil marriage only.

What the Constitutional Court Actually Decided (VVC v JRM 2026)

The case is reported as VVC v JRM and Others (CCT202/24) [2026] ZACC 2 — the apex-court authority on this question. The background was an opposed divorce between spouses who had been married by customary law in 2011 and, in 2019, signed an antenuptial contract in terms of section 10(2) of the Recognition of Customary Marriages Act before concluding a civil marriage in 2021. The High Court had declared section 10(2) constitutionally invalid, and the matter came to the Constitutional Court for confirmation of that declaration.

The Constitutional Court addressed whether parties to an existing customary marriage could execute a valid antenuptial contract to change their matrimonial property regime — the answer was no. The court treated the 2019 document as a postnuptial contract (not a true antenuptial contract) because the customary marriage was already in existence when it was signed. The contract, lacking judicial oversight, was invalid, and the parties remained in community of property throughout. The court treated customary marriages as full marriages for matrimonial-property purposes, foreclosing the argument that an ANC could “bootstrap” into a customary marriage that had already been concluded.

Pre-2026 commentary that suggested an ANC could validly be signed after a customary marriage should be treated as superseded — the ruling is the new starting point.

Practical Implications for Couples in this Position

• The validity of the marriage itself is unaffected — the customary marriage stands.
• Property acquired during the marriage is governed by the default matrimonial property regime, not by any ANC signed afterwards.
• Estate planning, wills, and beneficiary nominations should be reviewed in light of the regime that actually applies, not the regime the parties may have believed they were creating.
• Couples who genuinely want a different property regime should consult an attorney about a section 21 court application rather than signing another ANC.

Burger Huyser Attorneys’ family-law department regularly advises couples across Gauteng who find themselves in this exact position — whether to regularise a property regime by court application, to convert a customary marriage into a civil marriage with a fresh ANC at the point of conversion, or to confirm the existing regime by declaratory order.

Where the Ruling Lands in Gauteng

The Constitutional Court’s 2026 ruling in VVC v JRM applies uniformly across South Africa, so there is no provincial variation in the substantive rule — Gauteng-resident couples are bound by the same position as couples in Limpopo, KwaZulu-Natal, or the Western Cape. The Gauteng Division of the High Court, however, with seats in Johannesburg and Pretoria, is the likely venue for any section 21 application under the Matrimonial Property Act 88 of 1984 to change an existing matrimonial property regime after a customary marriage, since such applications must be filed in the High Court. The Pretoria seat handles matters from the northern parts of Gauteng (Pretoria, Centurion, Midrand, and the broader Tshwane Magisterial District), and the Johannesburg seat handles matters from the central, western, and eastern parts of the province — but this is a matter of jurisdiction based on the parties’ residence rather than a substantive procedural distinction.

Couples seeking advice about a post-customary-marriage ANC that has already been signed, or about converting a customary marriage to a civil marriage with a fresh ANC at the point of conversion, can approach any of Burger Huyser Attorneys’ Gauteng branches. The Linden head office (49 First Avenue, Linden, Randburg, 011 888 0246) is the practical first point of contact; the firm’s Centurion branch (012 644 4990), Pretoria branch (012 471 5700), and Sandton branch (011 253 3080) are alternative Gauteng points of intake depending on the client’s location.

Frequently Asked Questions

Can an antenuptial contract be signed after a customary marriage in South Africa?

No — the Constitutional Court in VVC v JRM and Others (CCT202/24) [2026] ZACC 2 held that an antenuptial contract cannot validly be signed after a customary marriage has been entered into. Antenuptial contracts are by definition pre-nuptial — they must be signed in contemplation of an imminent marriage, not after one has already been concluded.

What happens if my spouse and I already signed an antenuptial contract after our customary marriage?

The contract should be treated as having no legal effect on your matrimonial property regime. Your customary marriage remains valid, but the property regime applicable to it is the one fixed by the Recognition of Customary Marriages Act 120 of 1998 and the Matrimonial Property Act 88 of 1984 — not the regime the parties may have intended by signing the ANC. Consult an attorney about regularising the position.

Can we convert our customary marriage to a civil marriage and sign an antenuptial contract at the same time?

Yes — the conversion to a civil marriage under section 10 of the Recognition of Customary Marriages Act 120 of 1998 is the route through which a couple can move from a customary marriage into a civil marriage and sign an antenuptial contract at the same time to set the new civil marriage’s property regime. The ANC governs the new civil marriage going forward and does not back-date to the customary marriage.

How can we change our matrimonial property regime if an ANC is no longer an option?

An application to the High Court under section 21 of the Matrimonial Property Act 88 of 1984 is the route for changing an existing matrimonial property regime. Court approval is required — this is a different and more involved process than signing an ANC, and the court considers factors including the interests of creditors and the welfare of any minor children.

Does the Constitutional Court’s ruling affect the validity of my customary marriage itself?

No — the ruling addresses the validity of antenuptial contracts signed after a customary marriage, not the validity of the customary marriage. Customary marriages remain fully recognised under the Recognition of Customary Marriages Act 120 of 1998 and are constitutionally equal to civil marriages.

Antenuptial contracts fall within Burger Huyser Attorneys’ Family Law practice area, and the firm’s family-law team can advise couples who have already signed an ANC after a customary marriage — or who are weighing their options between a court application and a civil conversion — on the route that fits their circumstances. Clients across Gauteng can reach the firm through the Linden head office (011 888 0246), the Centurion branch (012 644 4990), the Pretoria branch (012 471 5700), or the Sandton branch (011 253 3080). The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and is a member of the Gauteng Family Law Forum.