Every year, thousands of South African couples begin lobola negotiations without having an antenuptial contract (ANC) in place. Many assume that the ANC only needs to be signed before the white wedding or before registration at the Department of Home Affairs. This assumption is wrong — and it is one of the most costly legal mistakes a couple can make.Recent judgments from the Gauteng High Court and, decisively, the Constitutional Court of South Africa, have made the legal position clear beyond any doubt:
⚠ Legal Warning
If you do not have a registered antenuptial contract in place before lobola negotiations begin, you may already be married in community of property, and no antenuptial contract signed afterwards will change that. This article explains the law in plain language, what it means for you and your partner, and the steps you should take to protect yourselves.
A customary marriage is a marriage concluded in accordance with customary law — the traditions and practices observed among the indigenous African peoples of South Africa. Customary marriages are fully recognised and protected under the Recognition of Customary Marriages Act 120 of 1998 (RCMA).Under section 3(1) of the RCMA, a customary marriage is valid if:
Importantly, registration at the Department of Home Affairs is not required for a customary marriage to be valid. A customary marriage that is never formally registered is still a legally binding marriage with full legal consequences.
This is the question that has caused enormous confusion — and enormous harm — to countless South African couples and families. Many people believe that lobola is simply an engagement gift, a cultural formality, or the opening act of a long process that only culminates in a "real" marriage at a formal wedding or Home Affairs registration.
The law does not share this view. Courts have consistently held that a customary marriage can be concluded at the point where:
In the landmark Sengadi v Tsambo case (confirmed by the Supreme Court of Appeal in 2020), the court found that a valid customary marriage existed after lobola negotiations were finalised, a lobola agreement was signed, payment was made on the same day, and the woman was welcomed into the family with traditional attire. The court expressly held that the "handing over of the bride" is not a legal requirement for a valid customary marriage.
⚠ Critical Point
Legal commentators have noted that even inviting the groom's delegation for a meal after negotiations could, in the right circumstances, satisfy the requirement of "celebration in accordance with customary law." Couples who cohabit after lobola negotiations are also generally regarded as married. The threshold is much lower than most people expect.
The high-profile divorce proceedings between Grammy Award-winning DJ Black Coffee (Nkosinathi Maphumulo) and actress Enhle Mbali Mlotshwa brought this legal reality into sharp focus for millions of South Africans.In October 2025, the Gauteng High Court in Johannesburg ruled that a valid customary marriage had been concluded between the parties in 2011, at the time of their traditional Zulu wedding ceremony, which included lobola payment and associated family rituals. The court found that:
Black Coffee disputed the ruling, maintaining that neither party intended to conclude a customary marriage in 2011. His attempt to challenge the ruling directly before the Constitutional Court was dismissed.
He was subsequently granted leave to appeal to the Supreme Court of Appeal — but before that appeal could be heard, the Constitutional Court delivered a judgment that has effectively settled the central legal question.
On 21 January 2026, the Constitutional Court delivered a landmark judgment in VVC v JRM and Others [2026] ZACC 2 that has settled this area of law at the highest level in South Africa.The facts were directly analogous to the Black Coffee situation. A couple married under customary law in 2011. Eight years later, in 2019, they signed what they believed to be a valid antenuptial contract, before concluding a civil marriage in 2021. When they divorced in 2022, the court was asked to determine which matrimonial property regime applied.
As one attorney summarised the position after the judgment: "Anything that you have done in relation to a civil wedding after lobola was paid is now officially null and void."Standard Bank and Liberty's legal specialists expressed the practical consequence with equal clarity: "This makes it critical to decide and register your marriage regime before families meet."
If a valid customary marriage was concluded without an antenuptial contract, you are automatically married in community of property. This means:
⚠ High Risk
For business owners, entrepreneurs, professionals with personal liability, and high-net-worth individuals, community of property can have devastating financial consequences. Your business assets, investment accounts, and property are all at risk.
If lobola negotiations have already been concluded and a valid customary marriage may have come into existence, it is no longer possible to register an antenuptial contract. The only available remedy is a postnuptial contract under Section 21(1) of the Matrimonial Property Act.This process involves:
ℹ Timeframes & Costs: The entire process typically takes three to five months. Costs are significantly higher than a standard ANC, generally upwards of R20,000 for a straightforward matter. The new regime only takes effect from the date of registration — it is not retrospective. This is a viable and effective remedy, and Louwrens Koen Attorneys is fully equipped to assist couples in this position. However, it is far more costly, time-consuming, and uncertain than simply registering an ANC before the lobola process begins.
✔ Firm Policy — Effective ImmediatelyFollowing VVC v JRM [2026] ZACC 2, Louwrens Koen Attorneys will not draft, execute, or register an antenuptial contract for any couple where lobola negotiations have commenced — in any form. To do so would be to register a void document. Before accepting any ANC instruction, we conduct a structured pre-instruction screening to confirm the status of any lobola-related process. If it emerges that negotiations have already begun, we will advise you clearly and, where appropriate, assist you with a postnuptial High Court application.
Your Situation. What To Do - No lobola discussions have taken place at all
Act now. Register your ANC before the first family meeting. Contact us immediately. Families have met, but no agreement or payment yet
Urgent.
Contact us immediately for a factual assessment. There may be a narrow window — but it is closing. Lobola agreed and/or any payment made
ANC is no longer possible.
You are likely married in community of property. Consider a postnuptial High Court application.You already signed an ANC after lobola was paid
That ANC is likely void.
Take immediate legal advice to confirm your matrimonial status and explore the postnuptial route.
Act now. Do not wait. The ANC must be signed, notarially executed, and lodged for registration with the Deeds Office before the first family meeting regarding lobola takes place. Not before the white wedding. Not before Home Affairs registration. Before the families sit down together.
Contact us to open a file and begin the drafting process. The ANC can be completed within a matter of days if both parties are available to sign.
There may still be a narrow window. Contact us urgently. We will conduct a detailed factual assessment of what occurred at any prior meeting to determine whether a customary marriage has already been concluded. If not, we may still be able to assist with an ANC — but only if it is completed before the next family meeting.
It is very likely that a valid customary marriage has already been concluded. An ANC is no longer available. Contact us to discuss a postnuptial contract application. In the interim, you should be aware that you are most probably married in community of property and should conduct your financial affairs accordingly.
Following VVC v JRM, the ANC is very likely void. Take immediate legal advice to confirm your current matrimonial property status and to consider whether a postnuptial application is appropriate.
As of March 2026, Black Coffee's appeal to the Supreme Court of Appeal remains pending, with the hearing expected later this year. It is important to understand what this appeal can and cannot achieve. The SCA will be asked to reconsider the factual question of whether a valid customary marriage was actually concluded between the parties in 2011.
The legal question — that an ANC signed after a customary marriage is invalid — has been definitively settled by the Constitutional Court in VVC v JRM and is no longer open for argument at any level. Even if Black Coffee succeeds on the facts (i.e., that no customary marriage was concluded in his specific case), this does not change the general legal rule. Couples should not take comfort from the pending SCA appeal when deciding how to proceed with their own matters. The law is clear.
"Customary marriages are not second-class marriages. Their property consequences cannot be altered casually or privately. Any change must comply with sections 7(4), 7(5) and 21 of the Matrimonial Property Act, ensuring fairness, transparency and constitutional protection."— Constitutional Court of South Africa, VVC v JRM [2026] ZACC 2
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