before concLUding Lobola consider this important legal matter

South-African couples of African ethnicities wishing to be married out of community of property should carefully contemplate finalising an antenuptial contract before the entering or conclusion of Lobola negotiations/ceremony taking place. This is directly opposite to the way marriages typically take place for African couples. Usually, the process is commenced by means of a correspondence to the bride’s family, followed by lobola discussions at the intended's wife’s home, followed by festivities at the bride’s home and thereafter at the bridegroom's home, whereafter a civil marriage takes place.

The contemporary African couple in a South African context has access to information which many of the generations before them did not have access to. As a result, they can garner an understanding of the various marital property regimes and the plethora of consequences flowing from each of them. For couples seeking to go the traditional ‘normal’ route, i.e., marriage in community of property this question may be of no relevance, but for those seeking to enter antenuptial agreements this poses a legal predicament.

Most South Africans who practise the custom of Lobola often misconstrue the legal significance of that process and view it as ‘informal’ or equivalent to an engagement. However, is not the case and is incorrect. The law as well as the courts take a flexible approach where customary marriages are concerned and largely find that where Lobola negotiations have been concluded and celebrated, and where the parties to the marriage are majors and have consented to the marriage, a marriage has been concluded between the parties.[1] Accordingly, after the negotiations have been concluded and celebrated the parties may go to Home Affairs to have their customary marriage registered and will be issued with a marriage certificate just as would be the case if the couple was married according to the civil law in a church or at home affairs.
Any understanding or view that Lobola is anything less than a marriage is flawed as in terms of the Recognition of Customary Marriage Act such parties are considered married and more importantly married in community of property.

In my legal practice I encounter numerous couples inform me that they have entered customary marriage but wish to enter an antenuptial contract before getting married at the church or Magistrates Court. I then have the unfortunate duty to inform them that from a South-African legal perspective legally they are already considered married in community of property, and they are thus not allowed to enter an antenuptial contract.
Consequently, where lobola has been concluded and celebrated the law recognises such a couple as married and the default marital property regime, community of property, will be applicable to the couple.

Couples wanting to opt out of a marriage in community of property and instead enter into a prenuptial agreement will have to conclude their marriage out of community of property before the lobola negotiations/ceremony taking place. Lobola is effectively a marriage in community of property which has many negative legal, status and financial complications.

If however, you want to be married out of community of property use our easy online process to apply for the registration of your antenuptial contract. Explore your matrimonial property regime options before getting married. We have assisted thousands of couples with their antenuptial contract registration needs.