In a groundbreaking judgment with profound implications for family law, cultural practice, and financial equity in South Africa, the Constitutional Court has delivered a decisive ruling that fundamentally clarifies the legal status of sequential marriages. On January 21, 2026, the apex court ruled that a civil marriage solemnized after a customary marriage constitutes a single, indivisible marital union that automatically defaults to being “in community of property.”
This verdict provides long-awaited certainty on a matter that has created legal ambiguity and, at times, severe vulnerability for spouses—often women—for decades. The court emphatically upheld the validity of Section 10(2) of the Recognition of Customary Marriages Act (RCMA) of 1998, rejecting a previous High Court finding that the section was unconstitutional.
The Core of the Judgment: One Union, One Default Estate
The legal question centered on couples who, as is common practice in South Africa, first undergo a customary marriage (often finalized through the payment of lobola and other rites) and later register a civil marriage at the Department of Home Affairs. Prior to this ruling, confusion existed over whether these were two distinct marital regimes or one.
The Constitutional Court has now settled this: they are a single, continuous marriage. The civil marriage does not supersede or nullify the customary one; rather, it legally formalizes the existing union within the civil system. Critically, the court held that the default regime for this unified marriage is “in community of property and of profit and loss,” unless a valid antenuptial contract (ANC) is in place before the civil ceremony.
This means all assets acquired by either spouse after the civil marriage—and by extension, after the customary union that it recognizes—are jointly owned. Debts are also shared. This default position is rooted in a constitutional interpretation aimed at protecting the economically vulnerable partner and affirming the cooperative nature of a marital partnership.
Closing the Loophole: Scrutiny for “Opt-Out” Contracts
A pivotal and protective aspect of the ruling addresses the process of opting out of this default system. The court underscored that any contract seeking to alter the default community of property regime—such as signing an ANC after the customary marriage but right before the civil one—must be subject to rigorous judicial oversight.
The judgment mandates that for such a post-customary marriage contract to be valid, it must receive official approval from a High Court. A judge must be satisfied that the contract is fair, equitable, and that both parties entered into it with full, informed consent, free from any duress or undue influence. This requirement is a direct safeguard against situations where one spouse, often possessing greater financial knowledge or power, might pressure the other into signing away their default rights on the eve of a civil ceremony.
Link to High-Profile Litigation and Societal Impact
The ruling resonates far beyond the courtroom, casting a definitive light on several high-profile, ongoing divorce cases that have captivated the nation. Most notably, it directly relates to the acrimonious divorce between internationally renowned DJ Black Coffee (Nkosinathi Maphumulo) and his ex-wife, actress Enhle Mbali Mlotshwa.
In that case, a central dispute was the validity of an antenuptial contract signed after lobola had been paid but before their civil wedding. A prior court had already ruled that contract invalid, a finding now powerfully reinforced by the Constitutional Court’s precedent. This precedent potentially entitles Mlotshwa to a 50% share of the massive estate built during their marriage, explaining the high financial stakes and the intensely split public reactions to their saga.
Legal experts hail the judgment as a victory for legal coherence and gender justice. “This ruling finally aligns the law with the lived reality of millions of South Africans,” said Professor Thandabantu Nhlapo, a leading scholar on customary law. “It removes a technical trap that could leave a spouse, who faithfully participated in a culturally recognized union, financially destitute upon divorce. It affirms that the ceremonial and the legal are part of one marital journey.”
The decision is also seen as a strong affirmation of the RCMA’s purpose: to recognize and respect customary marriages while ensuring they operate within a framework of constitutional rights, particularly equality and dignity. It sends a clear message that cultural practice and modern legal protection are not mutually exclusive, but must be harmonized to ensure fairness for all spouses in South Africa’s complex and pluralistic legal landscape.
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