Constitutional Court Ruling Brings Major Property Law Change for Married Couples in South Africa

• The Constitutional Court has confirmed that couples who enter a customary marriage without an antenuptial contract are automatically married in community of property
• The ruling means a later civil marriage cannot be used to change the couple's property system unless a court first approves the change under the Matrimonial Property Act
• Legal experts warn that buyers, sellers, banks and conveyancers must now pay closer attention to a property owner's marital history before any sale is finalised

A landmark Constitutional Court judgment has clarified how customary and civil marriages affect property ownership in South Africa, with potentially significant consequences for married couples, home buyers and property professionals. The ruling, according to Business Tech on 1 July 2026, confirms that spouses who enter into a customary marriage without signing an antenuptial contract beforehand remain married in community of property, even if they later have a civil marriage ceremony.

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The case involved a couple who entered into a customary marriage in 2011 without an antenuptial contract. Under South African law, that meant they were automatically married in community of property, with equal ownership of their joint estate. Before holding a civil marriage ceremony in 2021, the couple signed an antenuptial contract in an attempt to change their matrimonial property system to one out of community of property. The Constitutional Court ruled that the contract was invalid because the couple had not first obtained court approval under section 21 of the Matrimonial Property Act.

What this means for married couples

The judgment means that many South Africans who entered customary marriages may have different property rights than they assumed. If no antenuptial contract was signed before the customary marriage took place, the marriage remains in community of property unless a court formally approves a change.

That means both spouses have equal rights to assets acquired during the marriage, including houses, land and other immovable property. Legal experts say couples cannot simply sign a private agreement later and expect it to change their matrimonial property regime without judicial oversight.

Big implications for property sales

The ruling also affects anyone involved in buying or selling property. According to Sune Kruger, a director in the Real Estate Law and Conveyancing practice at Cliffe Dekker Hofmeyr (CDH), buyers, lenders, attorneys and conveyancers should now carefully investigate a seller's marital history before concluding a transaction.

Where a customary marriage exists, and no valid antenuptial contract was signed beforehand, both spouses will generally need to consent to the sale of immovable property. Failure to obtain the required consent could create legal disputes and potentially affect the validity of a property transaction.

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3 Other Briefly News stories about marriages

• Viral footage from Anele Mdoda's interview resurfaced online and sparked a heated discussion among viewers following cheating rumours with her husband.
• A happily married couple has shared a list of unspoken rules that they follow to maintain their loving and strong relationship.
• Reality star and businesswoman Nonku Williams is currently in a relationship with Johannesburg-based businessman Lungani Rammaledi.

Source: Briefly News