Important information for married couples who own property in South Africa
A recent Constitutional Court judgment has highlighted an important issue for married couples who own property in South Africa.
The court confirmed that the legal consequences of customary and civil marriages can have a direct impact on buying, selling, and managing immovable property.
According to Sune Kruger, Director in the Real Estate Law & Conveyancing practice at Cliffe Dekker Hofmeyr (CDH), the ruling highlighted the importance of proper due diligence.
This includes property owners, purchasers, and conveyancers, particularly where customary marriages are involved.
Kruger added that the decision strengthens legal certainty by confirming that customary marriages enjoy equal status and protection under South African law while safeguarding the interests of spouses and third parties in property transactions.
The case before the Constitutional Court involved a couple who entered into a customary marriage in 2011 without signing an antenuptial contract before the ceremony.
As a result, they were married in community of property, with equal ownership of their joint estate.
Years later, before holding a civil marriage ceremony in 2021, they signed an antenuptial contract in an attempt to change their matrimonial property system to one out of community of property.
However, the Constitutional Court ruled that this contract was invalid because the couple had not first obtained court approval under section 21 of the Matrimonial Property Act.
The court found that when spouses in a customary marriage later enter into a civil marriage, they do not create a new legal union.
Instead, it is “a single, continuous marriage,” with the civil ceremony serving as confirmation of the existing marriage rather than replacing it.
As a result, couples cannot alter their matrimonial property regime simply by signing an antenuptial contract after a customary marriage has already taken place. For many South Africans, this has significant practical consequences.
Unless an antenuptial contract was signed before the customary marriage, the default legal position is that the marriage is in community of property, giving both spouses joint ownership and management of marital assets.
Establish a seller’s marital history before concluding a sale
“If you did not sign an ANC before your customary marriage, you are married in community of property, and you remain so unless and until a court approves a change under section 21 of the MPA,” CDH explained.
The judgment also means that a later civil marriage does not divide the existing joint estate or create a new one.
The property rights established under the customary marriage continue unchanged, and each spouse retains an equal interest in jointly owned assets, including immovable property.
CDH stressed that judicial oversight exists to prevent either spouse from using a later civil ceremony or private agreement to reduce the other spouse’s rights without proper legal scrutiny.
This is particularly important where economically vulnerable spouses or creditors could be prejudiced.
The ruling is also an important warning for anyone involved in property transactions. Buyers, sellers, lenders, conveyancers, and attorneys should carefully establish a seller’s marital history before concluding a sale.
“Potential buyers must exercise caution and verify the marital regime of the seller before entering into a transaction relating to immovable property,” CDH said.
The firm noted that where spouses are married under customary law without a valid antenuptial contract concluded before the marriage, both spouses must generally consent to the sale of immovable property.
To reduce that risk, CDH recommended investigating whether a customary marriage preceded any civil marriage.
This will confirm the applicable matrimonial property regime and ensure all necessary spousal consents have been obtained before finalising a property deal.
“The law will not permit spouses to sidestep judicial oversight when altering their property arrangements,” the law firm warned.
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