Is Customary Marriage In Community Of Property?

Customary marriages in South Africa entered into after the Recognition of Customary Marriages Act 120 of 1998 came into force on 28 November 2000 are in community of property by default — the same default regime that applies to civil marriages without an antenuptial contract. Couples who want a different regime must sign an antenuptial contract before the marriage and register it at a Deeds Office within the prescribed period; couples who are already married under customary law and now want to change the regime can apply to the High Court for leave to do so under section 21 of the Act. The position is different for customary marriages entered into before the Act came into force — those remain out of community of property unless the spouses themselves took steps to change the regime, a position confirmed by the Constitutional Court in Ramuhovhi v President of the Republic of South Africa 2021 (ZACC 23).

The Short Answer: Yes — and the Default

Yes. Customary marriages concluded in South Africa after the Recognition of Customary Marriages Act 120 of 1998 came into force on 28 November 2000 are in community of property, unless the parties sign an antenuptial contract before the marriage. The default is the same as for civil marriages concluded without an antenuptial contract: one joint estate is shared between the spouses, with each spouse holding an undivided half share from inception and the estate being equally divisible on divorce.

The position is not a historical accident. The Act was enacted to do away with the discriminatory property regime that applied to customary marriages under the old Black Administration Act 38 of 1927 — a regime that automatically put customary marriages out of community of property and outside the Roman-Dutch law of succession, and that the Constitutional Court later declared unconstitutional. The Recognition of Customary Marriages Act reversed that default by aligning the proprietary consequences of customary marriages with those of civil marriages.

The Statutory Basis: Recognition of Customary Marriages Act 120 of 1998

Section 2 of the Recognition of Customary Marriages Act provides that a customary marriage is regulated by customary law (the marriage itself and its consequences under customary law), but the proprietary consequences of the marriage are governed by the Act. Where the spouses do not enter into an antenuptial contract in terms of the Marriage Act 25 of 1961 before the marriage, the marriage is in community of property.

The Act does not require the marriage to be registered at Home Affairs for the proprietary consequences to take effect — the COP default applies from the date of the marriage, even if the marriage is never registered. Registration at Home Affairs is, however, required for the marriage to be fully recognised for a range of other purposes: pension fund beneficiary nominations, immigration applications, parental rights and responsibilities, and the issuance of an updated marriage certificate. Both spouses must register the marriage jointly with the Department of Home Affairs within the period prescribed by the Act.

The Act’s anti-discrimination purpose is to equalise the treatment of customary and civil marriages in the proprietary sphere — a position the Constitutional Court has consistently affirmed, most recently in the Ramuhovhi trilogy.

The Three Matrimonial Property Regimes (Context for Comparison)

South African matrimonial property law recognises three regimes. The customary marriage default sits in the first one — but the opt-out is the same as for any civil marriage.

Regime	How the estates work	Default or opt-out?
In community of property	One joint estate; each spouse owns an undivided half share from inception. All assets and debts acquired before and during the marriage fall into the joint estate.	Default for civil marriages without an ANC and (after 28 November 2000) for customary marriages without an ANC.
Out of community of property with accrual	Separate estates during the marriage, but the spouse whose estate grew less during the marriage shares in the growth on divorce or death, subject to the exclusions listed in the Matrimonial Property Act 88 of 1984.	Requires an ANC with the accrual clause, signed before the marriage and registered at a Deeds Office within three months of execution.
Out of community of property without accrual	Fully separate estates; each spouse keeps what they brought in and what they earn during the marriage.	Requires an ANC without the accrual clause, signed before the marriage and registered at a Deeds Office within three months of execution.

The customary marriage default (in community of property) is, in effect, the equivalent of a civil marriage where the couple simply did not sign an antenuptial contract before the wedding.

How to Opt Out: The Antenuptial Contract Route

An antenuptial contract (ANC) is a notarial deed signed by both spouses before the marriage, in which they agree on a matrimonial property regime other than the default. For an ANC to be valid going into a customary marriage, three things must happen in sequence:

1. Drafting and execution by a notary public. Both spouses sign the deed in the presence of a notary, who is expected to explain the three matrimonial property regimes and the consequences of each before signing. The notary confirms that both parties understand the choice they are making.
2. Registration at a Deeds Office within three months of execution. If the ANC is not lodged for registration at a Deeds Office within three months of the date of execution, the contract lapses and the default in community of property regime applies regardless of what the parties intended.
3. Conclusion of the marriage. The chosen regime takes effect from the date of the marriage, not from the date the ANC is signed.

Couples who include the accrual clause in their ANC will share in the growth of their respective estates on divorce or death, subject to the exclusions listed in section 3 of the Matrimonial Property Act 88 of 1984 (assets excluded from the accrual calculation include inheritances, donations, and certain damages awards).

The Pre-2000 Transitional Position: Marriages That Started Under the Old Regime

Before 28 November 2000, customary marriages were governed by the Black Administration Act 38 of 1927, which put them automatically out of community of property and outside the Roman-Dutch law of succession. The Constitutional Court in Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC) and the related cases declared the discriminatory intestate succession provisions unconstitutional, and the Recognition of Customary Marriages Act was enacted to address the broader proprietary and succession legacy.

Spouses married under customary law before 28 November 2000 were not automatically converted to the new in community of property regime when the Act came into force. They remained out of community of property unless they themselves took one of two steps: signing and registering an antenuptial contract before the Act came into force (rare in practice), or applying to the High Court under section 21 of the Act after it came into force to change the regime.

The Constitutional Court confirmed this position in Ramuhovhi v President of the Republic of South Africa 2021 (ZACC 23), upholding the High Court’s order that pre-2000 customary marriages do not automatically convert to in community of property. The Court’s interim remedy declared that, until Parliament amended the Act, husbands and wives in pre-RCMA polygamous customary marriages had to share equally in the marital property. Parliament responded with the Recognition of Customary Marriages Amendment Act 1 of 2021, which commenced on 1 June 2021 and now regulates the proprietary consequences of customary marriages entered into before the original Act came into effect.

Changing the Regime After the Marriage: Section 21 of the Act

Section 21 of the Recognition of Customary Marriages Act allows spouses to apply to a competent court for leave to change their matrimonial property regime. For couples already married under customary law who want to be on a different regime — whether they married before or after the Act came into force — this is the practical route.

The application works as follows:

• Joint application. The application is made jointly by both spouses at any time after the marriage. There is no time limit within which the application must be brought, although courts look more favourably on applications made sooner rather than later after a change in circumstances.
• Sound reasons. The court will grant the application only if satisfied that there are sound reasons for the change. Typical reasons include a change in financial circumstances, a desire to ring-fence a family business, or the registration of the marriage after the fact.
• Notice to creditors. Proper notice must be given to the creditors of both spouses (typically by way of advertisements in a local newspaper and the Government Gazette), and the court must be satisfied that the change will not prejudice the rights of creditors or other third parties.
• Effect of the order. Once granted, the new regime takes effect from the date of the court’s order — not retrospectively to the date of the marriage. Property already accrued under the old regime is not unwound; only future acquisitions fall under the new regime.

For Gauteng-resident spouses, section 21 applications are filed in the Gauteng Division of the High Court — the Pretoria seat for matters north of the Jukskei River and the Johannesburg seat for matters south of it.

What the COP Regime Means in Practice

The in community of property regime has practical consequences that touch nearly every part of a couple’s financial life:

• Assets. All assets owned before the marriage and all assets acquired during the marriage fall into the joint estate. Each spouse owns an undivided half share in every asset from inception, not from the date of acquisition.
• Debts. All debts incurred before and during the marriage are similarly shared. A creditor of one spouse can generally attach the joint estate to satisfy a judgment, subject to the protections for necessaries for the joint household.
• Divorce. On divorce, the joint estate is divided equally between the spouses, subject to the court’s power to make a redistribution order under section 7 of the Divorce Act 70 of 1979 if the equal division would be unjust in the circumstances. The factors the court considers include the marriage’s duration, the parties’ respective direct and indirect contributions, and their respective financial positions.
• Death. On death, the surviving spouse shares in the estate of the deceased spouse. The customary-law heirs of the deceased also have a claim against the estate under the Intestate Succession Act 81 of 1987, as amended by the Intestate Succession Amendment Act 13 of 2017, and the court has to balance the competing claims.

Doing This in Gauteng: Where the Practical Steps Land

The Recognition of Customary Marriages Act 120 of 1998 applies uniformly across South Africa, so the answer to whether a customary marriage is in community of property does not turn on which province the spouses are in. The practical steps that put the answer into effect, however, do go through local offices — the Deeds Office where the antenuptial contract is registered, the Home Affairs office where the marriage is registered, and the High Court where a section 21 application is filed.

In Gauteng, couples resident in Johannesburg, Randburg, Sandton, Pretoria, Centurion, Roodepoort, Bedfordview, Alberton, or Midrand will register their antenuptial contracts through the Johannesburg Deeds Office or the Pretoria Deeds Office, depending on the magisterial district. Section 21 applications by Gauteng-resident spouses are filed in the Gauteng Division of the High Court — the Pretoria seat for matters north of the Jukskei River, the Johannesburg seat for matters south of it. The Ramuhovhi decision itself applies to all provinces and is the leading authority on the pre-2000 transitional position.

Burger Huyser Attorneys’ Family Law practice handles the notarial and court side of these matters. The firm has notaries and conveyancers on staff — including Natasha van Deventer and Amanda le Roux at the Bedfordview branch and Chanté Marais at the Pretoria branch — who can draft, execute, and register antenuptial contracts. The firm also files section 21 applications through its Family Law practice where the regime needs to be changed after the marriage.

Frequently Asked Questions

Is customary marriage in community of property in South Africa?

Yes — customary marriages entered into after the Recognition of Customary Marriages Act 120 of 1998 came into force (28 November 2000) are in community of property by default, the same way a civil marriage without an antenuptial contract is. Couples who want a different regime must sign an antenuptial contract before the marriage and register it at a Deeds Office within the prescribed period.

Can a customary marriage be out of community of property?

Yes — if the spouses sign an antenuptial contract before the marriage that specifies out of community of property (with or without accrual), and the contract is registered at a Deeds Office within three months of execution. Without a registered ANC, the customary marriage will be in community of property by default.

What if we married under customary law before 2000 — are we in community of property now?

Not automatically. Customary marriages entered into before the Recognition of Customary Marriages Act came into force on 28 November 2000 remain out of community of property unless the spouses themselves took steps to change the regime. The Constitutional Court confirmed this position in Ramuhovhi v President of the Republic of South Africa 2021 (ZACC 23). Couples who now want to be on the COP regime can apply to the High Court for leave to change the regime under section 21 of the Act.

Does the antenuptial contract have to be registered?

Yes — the ANC must be executed by a notary public and registered at a Deeds Office within three months of execution. If it is not registered timeously, the default COP regime applies regardless of what the parties intended.

Do we need to register our customary marriage at Home Affairs?

Registration at Home Affairs is not required for the proprietary consequences (the COP default) to apply, but it is required for the marriage to be fully recognised for a range of other purposes — pension fund beneficiary nominations, immigration applications, parental rights and responsibilities, and the issuance of an updated birth or marriage certificate. Both spouses must register the marriage jointly within the period prescribed by the Act.

What happens to the joint estate on divorce?

The joint estate is divided equally between the spouses, but a court can make a redistribution order under section 7 of the Divorce Act 70 of 1979 if an equal division would be unjust in the circumstances. The factors the court considers include the marriage’s duration, the parties’ respective contributions, and their respective financial positions.

Can a single person enter into a customary marriage and apply the COP regime?

Yes — the Recognition of Customary Marriages Act does not require either party to have been married before, and the COP default applies to the joint estate regardless of whether it is a first or subsequent marriage. The same opt-out via ANC is available.

Where can we get help with an antenuptial contract or a section 21 application?

Burger Huyser Attorneys’ Family Law practice handles antenuptial contracts (drafting, execution by a notary, and Deeds Office registration) and section 21 applications to change a matrimonial property regime. The Linden head office (49 First Avenue, Linden, Randburg, 2194, 011 888 0246) is the practical starting point, and the firm will refer the matter to the appropriate branch.

If you are about to enter into a customary marriage or are already married under customary law and want to confirm or change your matrimonial property regime, Burger Huyser Attorneys’ Family Law team can help. The firm drafts and registers antenuptial contracts at the Deeds Office, and handles section 21 applications to the High Court for couples who want to change their regime after the marriage. The Family Law practice is led by Director Anna-Mi Nel (also co-Director of the Sandton branch) and includes notaries Natasha van Deventer and Amanda le Roux (Bedfordview) and Chanté Marais (Pretoria).

Call the Linden head office on 011 888 0246 (after-hours 061 516 6878) or visit 49 First Avenue, Linden, Randburg, 2194, Monday to Friday, 7:30am to 4:30pm. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and fields family law work across all Gauteng branches.