ANC After a Customary Marriage in South Africa: What the Law Really Allows

Marriage is not just emotional — it is legal and financial. In South Africa, the type of marriage you enter into, and when you conclude an ante-nuptial contract (ANC), can determine whether your family is protected or exposed.

For many couples married under customary law, the rules around prenuptial agreements, the accrual system, and marital property regimes only become clear years later — often when buying property, starting a business, or planning an estate.

By then, the consequences can be severe. A recent Constitutional Court judgment has confirmed what many couples fear: you cannot simply fix your matrimonial property regime after a customary marriage by signing a prenup.

At Benaters, we understand how overwhelming this can feel. Your family is mine too — and clarity is the first step toward protection.

What Is an Ante-Nuptial Contract in South Africa?

An ante-nuptial contract, often called a prenup or prenuptial agreement, is an agreement concluded before marriage. It determines how spouses’ assets and liabilities are dealt with during the marriage and if the marriage ends through divorce or death.

If no ANC is signed, the marriage is automatically in community of property. This means all assets and debts are shared equally, and both spouses are jointly liable to creditors.

An ANC allows couples to marry out of community of property, either including the accrual system or excluding the accrual system. This decision affects property ownership, debt exposure, estate planning, and inheritance.

Customary Marriage and the Default Property Regime

Customary marriages are fully recognised under South African law. Once a valid customary marriage exists, the spouses are legally married — regardless of whether the marriage is later registered or followed by a civil ceremony.

Unless an ANC was signed before the customary marriage, the marriage is in community of property by default, even if the spouses later conclude a civil marriage with each other.

Can You Sign an ANC After a Customary Marriage?

The Constitutional Court has confirmed that an antenuptial contract signed after a valid customary marriage does not change the matrimonial property regime.

Once a customary marriage exists, any agreement signed afterward is not an ANC. It is a post-nuptial contract and is invalid unless authorised by a court.

Why This Matters in Practice

If a marriage is in community of property, creditors may attach joint assets, one spouse’s financial decisions affect the other, and on divorce or death assets are divided equally.

Signing a prenup after the fact does not solve these problems and may create a false sense of security.

Changing the Matrimonial Property Regime After Marriage

Where spouses are already married and wish to change their matrimonial property regime, the only lawful option is a section 21 application under the Matrimonial Property Act.

This High Court process requires full disclosure of assets and liabilities, proof that no creditors will be prejudiced, and judicial approval before any change has legal effect.

Including vs Excluding the Accrual System

Including the accrual system allows spouses to retain separate estates during the marriage while sharing the growth in those estates at the end of the marriage.

Excluding the accrual system keeps estates entirely separate, with no sharing of growth on divorce or death.

Practical Guidance for South African Couples

Before marriage: obtain legal advice early, ensure the ANC is properly drafted, notarised, and registered, and decide carefully on the accrual system.

Already married: do not rely on a later prenup, seek professional advice before signing anything, and consider whether a section 21 application is appropriate.

Protecting your family: proper planning reduces disputes, protects children and businesses, and provides certainty.

We Believe in Doing This Properly

These are family decisions, not just legal ones. At Benaters, we believe in family — yours and ours. We take the time to explain, we get the structure right, and we help you move forward with confidence.

Let’s Talk

If you are unsure whether your ANC is valid, planning a marriage, or concerned about your exposure, now is the time to get clarity.

Customary Marriage & Ante-Nuptial Contracts (ANCs): Frequently Asked Questions

Can I sign an ante-nuptial contract after a customary marriage?

No, not without court approval. If no ANC existed before the customary marriage, the marriage is in community of property. Any later prenup is invalid unless a High Court approves a change under section 21 of the Matrimonial Property Act.

What if we later had a civil marriage with each other?

This does not change the matrimonial property regime. The legal consequences flow from the first valid marriage.

What happens if we signed an ANC after the customary marriage anyway?

In most cases, that ANC is invalid and unenforceable. The marriage remains in community of property.

Can we change our matrimonial property regime after marriage?

Yes, but only through a section 21 High Court application with full disclosure and judicial approval.

Does the accrual system apply automatically?

No. The accrual system only applies if expressly chosen in a valid ANC concluded before marriage.

Which is better — including or excluding the accrual system?

There is no one-size-fits-all answer. The correct choice depends on income, assets, business risk, and family responsibilities.

Does registering the customary marriage change the property regime?

No. Registration records the marriage but does not change its legal consequences.

When should we speak to an attorney?

As early as possible — ideally before any customary marriage rites. Early advice can prevent serious financial harm.