What Concourt’s antenuptial contracts ruling means for couples

THE Constitutional Court's ruling validating antenuptial contracts entered into after a customary marriage could result in increased litigation as economically-weaker spouses challenge previously accepted antenuptial contracts.

- ZELDA VENTER

This is according to family law expert Bertus Preller following the Concourt’s decision to decline to confirm a previous order of constitutional invalidity made by the Gauteng High Court, which had declared Section 10(2) of the Recognition of Customary Marriages Act unconstitutional.

The majority of the ConCourt held that this section does not allow a change in the matrimonial property regime without judicial oversight.

The ruling was prompted by a couple who entered into a customary marriage in 2011, signed an antenuptial contract in 2019, and then married civilly in 2021.

Upon divorce a year later, a dispute arose regarding their property regime. Preller explained that the core issue was whether the antenuptial contract signed in 2019 was valid and enforceable.

The majority Concourt judgment, by Justice Steven Majiedt and supported by five other judges, found the antenuptial contract invalid.

They reasoned that when the contract was signed, the parties were already married under customary law.

Their customary marriage, concluded without an antenuptial contract, was automatically in community of property according to Section 7(2) of the Act.

The majority held that an antenuptial contract must be concluded prior to the marriage it regulates.