The recent Constitutional Court ruling confirming that customary marriages in South Africa are automatically in community of property, has significant implications for estate planning.
It calls for greater understanding of legal implications for those planning to take their relationships to the next level during Valentines Day.
Legal and fiduciary experts from financial services, Standard Bank and Liberty, say cultural a tradition like Lobola or Mahadi and the subsequent celebration carries legal weight. Many couples see the formal introduction of families only as the first step to signal long-term intentions or before living together. But these introductions can trigger far-reaching consequences once Lobola has been negotiated and the ceremony is publicly celebrated in line with traditions.
South African law already treats the payment of Lobola or Mahadi as part of a customary marriage. Whether followed by a “white wedding” or a big traditional celebration doesn’t matter. If a dowry is paid and some form of celebration takes place, even a small one, the marriage is legally recognised as in community of property.
“The new ruling goes further because it says any antenuptial contract (ANC) signed after that day is invalid. This makes it critical to decide and register your marriage regime before families meet,” says Liberty Senior Legal Specialist, Faeeza Khan.
Shaka Zwane, Standard Bank Head of Insurance, explains why: the regime you choose – or default into when you don’t have an ANC – determines how assets are divided years later, whether the couple stays together or not.
“If you, entered into, and celebrated Lobola in accordance with customary law without an ANC, your spouse has a legal claim to half your estate,” Zwane notes. Without an ANC, separation becomes complicated. Couples often break up between Lobola negotiations and the wedding day. “If that happens, can you simply walk away? Or will your partner fight for their rights as a spouse in community of property?” he cautions.
That’s why professional advice is essential, Zwane adds. Estate planning must align with your marriage regime.
Khan adds that couples should also seek financial guidance on managing two incomes and protecting both partners, no matter what the future holds.
“It is important to note that the judgement places a new burden of due diligence on individuals and professionals alike. Do not rely on assumptions. Investigate your full marital history, confirm the validity of your first union, scrutinise your contracts, and seek expert legal and financial advice to ensure your financial plan is built on solid, unambiguous ground. Your financial future depends on it.”
