Authored By: Charmaine Seerane
University of Fort Hare
INTRODUCTION
For decades, many South African monogamous couples entered into the antenuptial contract (ANC) only before they entered into their civil marriage, despite being married under customary law. In which they operated under the mistaken belief that civil marriage provided a “fresh start” for their property regime.However, it was a legal myth which was recently shattered by the ruling of the recent case of VVC v JRM and Others (2026) ZACC, where the Constitutional Court reinforced the doctrine of the single, continuous marriage, holding that once a customary union is concluded, the parties are legally entered into a property regime that can not be formally altered. Through an analysis of the VVC v JRM, this article demonstrates that the prohibition of the informal post-customary ANCs serves as a vital constitutional safeguard. By requiring a formal court application to change a marriage’s property system under of section 21 of the matrimonial proparty act, the law ensures that the rights of spouses are protected against the coercive alteration of a subsisting joint estate.
Historical context of the “fresh start” myth
Before the Recognition of Customary Marriage Act was enacted, customary marriages were, for all intents and purposes, not recognized by the South African legal system as they were polygamous. Consequently, these marriages were held to be in accordance with public policy and the principle of natural justice. Consequences flowing from these marriages could also not be enforced as this too was regarded as contrary to public policy and natural justice. The spouses during the subsistence of the marriage contract a civil marriage with another person, which has the effect of dissolving the previously subsisting marriage. Post-RCMA, people registered their marriages under customary law or civil law, but not both.
The study revealed significant confusion among married couples about the differences between customary and civil marriages as well as the registration process and the legal regulation of both. Despite the introduction of the Recognition of Customary Marriage Act, civil marriages were thought to provide better legal protection.
Moreover, registering a marriage with the Department of Home Affairs was strongly associated with civil marriages. Almost all the people in thought they had registered their marriage as a customary marriage. They were unaware of the marital system they had married under, and therefore unaware of the rights and responsibilities of being married under that system. The findings also show that officers registering marriages did not distinguish between registering a customary marriage and registering a civil marriage.
Facts of the VVC v JRM and OTHERS case
The parties were married under customary law in August 2011. In 2019, they decided to conclude a civil marriage and signed an antenuptial contract (ANC) in terms of section 10(2) of the Recognition Act. That contract provided that the civil marriage would be out of the community of property and subject to the accrual system. They concluded the civil marriage in 2021, without dividing the joint estate created by the customary marriage.
In 2022, the first respondent sought a decree of divorce and enforcement of the ANC against the applicant. In response, the latter pleaded that the ANC was invalid, or, in the alternative, that, if the ANC was held to be valid, section 10(2) of the Recognition Act (the impugned provision) was unconstitutional. The basis pleaded for the alleged unconstitutionality was that the impugned provision permitted spouses married under customary law to change their matrimonial property regime from in community of property to out of community of property by mere written agreement and without judicial oversight.
Doctrinal foundation: Single continuous marriage
Section 10(2) of the RCMA provides, in essence, that when spouses to a customary marriage conclude a civil marriage with each other, the marriage is in community of property unless those consequences are excluded by an ANC regulating the matrimonial property system of their marriage. The majority accepted that the provision contains linguistic ambiguity, particularly in the closing words “of their marriage”. Resolving that ambiguity contextually and purposively, the Court held: The opening reference to “the marriage” can sensibly refer only to the later civil marriage. However, the concluding phrase “of their marriage” must refer to the pre-existing customary marriage, because an antenuptial contract – by its nature and under sections 86 and 87 of the Deeds Registries Act – must be concluded before the marriage it regulates. Because there is only one continuous marriage commencing with the customary ceremony, a valid ANC can be executed only before the customary marriage. Any agreement concluded thereafter is necessarily a postnuptial attempt to alter the matrimonial property regime.
Statutory Mechanics: Section 21 of Matrimonial Property
Couples have the option to change their matrimonial property regime during their marriage under the Matrimonial Property Act (No. 88 of 1984), specifically Section 21. This provision allows couples to alter the legal structure that governs how assets and liabilities are handled during their marriage, but only through a joint court application, ensuring no prejudice to creditors or spouses. In this case, the parties’ post-customary ANC bypassed this mandatory oversight, attempting an unauthorized shift from community of property, rendering it invalid and highlighting section 21’s role in enforcing continuity under RCMA section 10(2).
Constitutional Dimensions
The High Court then decided the constitutional challenge. It held that section 10(2) of the Recognition Act was unconstitutional because it allowed spouses in customary marriages to change their matrimonial property regime without judicial oversight, permitting arbitrary deprivation of property and unfair discrimination, particularly against women married under customary law. The declaration of invalidity was suspended for 12 months, and a reading-in was ordered if Parliament failed to cure the defect.
Gender and societal impact
Section 6 of the RCMA provides that ‘a wife in a customary marriage has based on equality with her husband and subject to the matrimonial property system governing the marriage, full status and capacity, including the capacity to acquire assets and to dispose of them, to enter into contracts and to litigate, in addition to any rights and powers that she might have at customary law.
The JRM v VVC case serves as a clarion call for greater constitutional scrutiny of legislative provisions that have the potential to perpetuate gender and racial inequalities in the context of customary marriages. The judgment underscores the importance of judicial oversight in safeguarding the rights and interests of vulnerable parties, particularly women, when significant changes to matrimonial property regimes are contemplated.
Comparative Analysis: Pre- and post-RCMA Practices
Pre-RCMA: Non-Recognition Era
In the past, African women in KwaZulu-Natal did not have the right to own property or to take legal action without the assistance of a male guardian. Under the law, these women had the legal status of children, regardless of their age. The hardship of women was made worse by marriage laws that put women under the power of their husbands and made husbands the sole owners and controllers of property in the marriage. Since the transition to democracy in South Africa, the new Constitution and Bill of Rights require equality between men and women and between people of all races in South Africa. This means that discriminatory laws are unconstitutional – in other words, illegal. It is for this reason that Parliament passed a new law on customary marriages. The new law attempts to recognise custom and also protect the rights of women.
Post-RCMA Persistence (1995-2025)
In terms of section 4(2) of the RCMA, any spouse in a customary marriage may apply to register their marriage in the specified form. They have the duty to provide the relevant information to establish that the marriage actually exists. The RCMA requires the registering officer to register the marriage by noting the names of the spouses and the date of the marriage, a lobola agreement, and any other necessary information if the officer is satisfied that a valid customary marriage exists.
Nonetheless, a customary marriage remains valid even if it is not registered as provided in section 4(9) of the RCMA. It is safe to say that section 4(9) has made the registration of a customary marriage optional, thereby weakening the need for registration. This provision is problematic because it creates obstacles by making it difficult to establish the validity of an unregistered customary marriage without de facto evidence. Spouses in customary marriages frequently encounter the problem that their marriages are not recognised because they are not registered. Spouses often depend on their partners because they believe they lack the authority to register on their own, or because they live in remote areas and find it difficult to reach the registration office. While most women are aware of the registration procedure, section 4(9) makes registration optional, which discourages customary marriages from being registered by the parties.
VVC v JRM as Resolution (Practical and Constitutional Implications)
The Court clarified that matrimonial property systems cannot be changed informally. Any attempt to move from a community of property to out of a community of property requires judicial oversight, especially to protect economically vulnerable spouses—most often women—and creditors. Courts will not accept private agreements that bypass statutory safeguards. For self-represented litigants, the judgment sends a powerful message: courts decide cases on law, pleaded facts, and statutory interpretation, not on assumptions rooted in historical inequality. Importantly, customary marriage spouses do qualify for asset division, and their rights must be asserted clearly and procedurally correctly. Ultimately, VVC v JRM strengthens access to justice by correcting entrenched myths and ensuring that customary marriage is treated with dignity, equality, and complete legal protection under South African law.
Conclusion
The VVC v JRM case rejects the “fresh start” myth, affirming the continuity of customary marriages with spousal safeguards. It invalidates post-marriage antenuptial contracts under a purposive reading of sestion 10(2) RCMA, requiring section21 Matrimonial Property Act court applications to protect creditors and women. Unilateral civil remarriages are barred, in accordance with public policy and pre-RCMA justice principles. Judicial oversight shields unregistered marriages from section 4(9) issues and entrenches section 6 equality, curbing patriarchal KZN legacies. Self-represented litigants’ rights rest on pleaded facts and statutes, not myths.
BIBLOGRAPHY
CASES
VVC v JRM and others (2026) ZACC 2(south Africa)
ARTICLES
IP Maithufi &JC Bekker The Recognition of the Customary Marriage Act of1998 and its impacton family law in South africa
ConCourt Clarifies Property rights when customary marriages become civil marriage, Moonstone (JAN 26,2026)
Nosipho L Ndebele, the recognition of customary marriage amendment act discriminates against the women’s marital property rights(2018)
The recognition of customary marriages in South Africa: Law, policy and law
Lebo C Manzini, Legal Challenges of unregistered customary marriages: The impact of optional registration under the Recognition of Customary Marriage Act (2024)
Hendry Sambane, VVC v JRM: Customary Marriage gets equal constitutional status (2026)
Matrimonial Property act 88 of 1994 s21(south Africa)
