Several legal experts have weighed in on what the Constitutional Court’s ruling on customary marriages and antenuptial contracts means for the practice of lobola, which is the tradition of a groom’s family giving cash or cows to a bride’s family to signify their union.
And their advice is unanimous – sign a prenup, before traditional marriage consultations conclude!
Failing to do so could complicate matters as traditional marriages, including lobola negotiations, are recognised as a legal, civil contract between couples.
WHAT THE CONSTITUTIONAL COURT RULED REGARDING CUSTOMARY MARRIAGES
On Wednesday, 21 January, the Constitutional Court made a landmark ruling on customary marriages.
- Customary or traditional marriages are treated as civil marriages and, by default, are set to community of property contracts.
- Antenuptial contracts signed after customary marriages are invalid.
- Antenuptial contracts signed after customary marriages are regarded as postnuptial contracts. However, an application to the High Court to recognise it is mandatory.
EXPERTS: SIGN PRENUPS BEFORE LOBOLA IS CONCLUDED
The ConCourt’s ruling has been met with public praise for recognising customary marriages and protecting the financially “weaker” spouse, which is, in many cases, women. However, many have questioned where the practice of lobola fits within the legal framework.
As South Africa recognises customary marriages through the recognition of the 1999 Customary Marriage Act, traditional unions – be it Zulu, Xhosa, or any other – are legally valid civil marriage unions, which are by default set to be in community of property.
Cor van Deventer, a conveyancer at VDM Attorneys, told content creator Ash Muller: “Once lobola is paid, you are officially married, whether the marriage is registered at Home Affairs or not”.
He added: “If you enter into a traditional customary marriage, which is legal and recognised, my advice is to look at signing an antenuptial contract before they conclude the lobola negotiations”.
Attorney Mary-Jane Mphahlele stated that postnuptial marriage contracts signed after lobola negotiations have concluded must be brought as a formal application under section 21(1) of the Matrimonial Property Act before the High Court.
She shared on Facebook: “This process is costly, time-consuming, and subject to the court’s discretion, with no guarantee of success, particularly where creditors may be prejudiced.
She added: “Accordingly, concluding an antenuptial contract before the commencement of the lobola process is a critical legal safeguard. It provides certainty, protects both parties’ proprietary interests, and avoids unnecessary disputes and litigation. Proper legal advice at the outset ensures that the marriage is entered into with clarity, dignity, and financial security”.
Parties who intend to enter into a customary marriage through the payment of lobola are strongly advised to conclude an…
Posted by Mary-Jane Mphahlele Attorneys on Tuesday 13 January 2026
WHAT IF THE RELATIONSHIP BREAKS DOWN AFTER LOBOLA?
Metro FM’s Faith Mangope also unpacked how lobola negotiations – recognised as valid civil unions – are affected when a couple splits.
Legal expert Zama Mopai revealed that once lobola has been given from the groom’s family to the bride’s family, the union is recognised as a valid customary marriage contract. This is also valid if a portion of the lobola amount has been given during negotiations.
Under customary law, the union is valid with or without a marriage certificate.
Civil unions are set to a community of property contract by default.
If a couple parts ways after lobola negotiations but before a civil ceremony, their customary marriage and the legal implications thereof are still upheld.
Mopai said: “It is a valid marriage that is recognised by the law of South Africa. In this case, the Customary Marriage Act.
“The only way to dissolve a customary marriage contract is to go to court, for a decree of divorce. The property system of that marriage should be dissolved, and the property must be divided”.
Should this not be done, and an individual goes on to marry another in a civil union, the latter becomes invalid.
