Katlego Sekhu
- A recent Constitutional Court ruling has clarified that customary marriages are legally recognised and, unless an antenuptial agreement is signed beforehand, couples are automatically married in community of property.
- Legal expert Minenhle Khumalo explains what counts as a valid customary marriage.
- While there is a legal pathway to move out of community of property, it requires consent from both spouses, notification of creditors, and formal court approval.
Drive 959 unpacked a landmark Constitutional Court ruling on customary marriages, property rights and prenuptial agreements.
Admitted attorney Minenhle Khumalo joined the team during the Make It Make Sense feature to explain what the judgment means, why customary marriages are fully protected in law, and how the ruling strengthens protections for women.
So what does this ruling mean for people who are already married?
According to section 3 of the Recognition of Customary Marriages Act, a customary marriage must be both negotiated and celebrated.
Khumalo explains: “The implication is that couples are regarded as married in community of property in the absence of an antenuptial agreement signed beforehand.”
She cautions couples to do the legal work first.
“Do the pre-nup before you send that letter. There are different types of antenuptial agreements, so choose the one that works for you.”
Khumalo also notes that the Act does not clearly define what a lobola celebration looks like.
“So even a lobola luncheon could potentially hold up in court as a celebration.”
But what happens if someone signs a pre-nup after lobola?
“That agreement is null and void,” explains Khumalo.
She adds that customary and civil marriages are treated the same in the eyes of the law.
“When the Recognition of Customary Marriages Act came into effect, it made civil and customary marriages equal. The same principle applies in civil law. If you get married today and decide to do a pre-nup later, it is also regarded as null and void. The same applies to customary marriages.”
So what about couples who entered into a customary marriage without intending to be married in community of property?
Khumalo explains that Section 21 of the Matrimonial Property Act allows couples to apply to the High Court to change their matrimonial property system.
“You can apply to move from in community of property to out of community of property. The court will grant this if it is satisfied that both parties consent and that no one will be prejudiced.”
She adds that creditors must also be informed.
“If your matrimonial property system changes, your creditors must be given notice. They have the right to object. You and your spouse must satisfy the court that you both consent to the change.”
There is recourse, but it is a process. It is not the end of the road, but it does require time, agreement from both partners, and the proper legal steps.
To hear the full discussion, listen to the podcast.
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