Authored By: Makondo Nyeleti Latoya
University of South Africa
Introduction
A major Constitutional Court of South Africa, decision on customary marriages and antenuptial contracts. The decision in this case marks an important development in South African family law, particularly concerning the interaction between customary marriages, civil marriages and matrimonial property regimes. The Constitutional Court was called upon to clarify whether spouses married under customary law may alter their matrimonial property system by concluding a civil marriage and antenuptial contract without judicial oversight
Background and facts
The parties in this case are VVC who is the applicant and JRM who is the first respondent, and Others, that is the Ministers of Justice & Constitutional Development and Home Affairs.
The dispute began as an opposed divorce in the High Court (Pretoria) between spouses married initially under customary law in 2011. The couple later signed an agreement in 2019 intending to regulate their matrimonial property regime out of community of property with accrual before solemnising a civil marriage in 2021, but no prior antenuptial contract was validly in place at the time of their customary marriage.
Legal Context
Recognition of Customary Marriages Act 120 of 1998 (RCMA)
Whether a customary marriage terminates or continues once the same spouses conclude a civil marriage. A customary marriage without an antenuptial contract is by default in community of property (joint estate). Section 10(2) regulates property consequences when spouses married under customary law enter into a civil marriage.
Whether spouses may validly change their matrimonial property regime without judicial oversight by relying on section 10(2) of the RCMA
Matrimonial Property Act 88 of 1984 (MPA)
Section 21 requires judicial oversight for any change in matrimonial property regime after marriage. Whether section 10(2) of the RCMA is unconstitutional for permitting a change to the matrimonial property system without compliance with section 21 of the MPA
High Court Decision
The High Court found section 10(2) of the RCMA unconstitutional because it allowed spouses in a customary marriage to bypass judicial oversight when changing their matrimonial property regime, unfairly disadvantaging financially weaker spouses (often women). The court declared the antenuptial contract invalid and suspended the declaration of invalidity for 12 months to allow Parliament to fix the defect.
Constitutional Court Judgment (Jan 21, 2026)
➤ Majority (Majiedt J)
Did not confirm (refused) the High Court’s order of constitutional invalidity, and also held that section 10(2), when properly interpreted, does not allow spouses to change their matrimonial property regime without judicial oversight. The conventional safeguard under section 21 of the Matrimonial Property Act still applies. The Court clarified that a customary marriage continues even after spouses contract a civil marriage, it is a continuation of the already existing marriage, not a new one. Accordingly, the antenuptial contract was invalid because changing to property regime require judicial approval under section 21. No order as to costs was imposed by the Court As no court approval was obtained, the antenuptial contract relied upon by the parties was invalid
➤ Dissent (Rogers J)
Judge Rogers J, took a different interpretation of section 10(2), focusing on contractual autonomy of spouses and arguing that the antenuptial contract could be valid under a different interpretation. Also concluded that section 10(2) is not unconstitutional and that the ANC should be regarded as valid. He would have ordered costs to be borne by the parties themselves.
What It Means (Significance)
Customary marriages remain legally significant even when the same spouses later enter into a civil marriage, they are seen as a single, continuous marriage. A change to the matrimonial property regime after marriage (e.g. going out of community of property) must go through judicial oversight under section 21 of the Matrimonial Property Act, as a mandatory safeguard. The judgment protects spouses (particularly women) from being unfairly deprived of rights in the joint estate without proper court processes.
The Constitutional Court upheld constitutional safeguards in matrimonial property law by requiring court oversight for any post-marriage change of the property regime and clarified that customary marriages do not simply vanish when a civil marriage follows
The court’s interpretation reinforces the principle that judicial oversight serves as a crucial protective mechanism, especially for financially vulnerable spouses in customary marriages. By affirming that a civil marriage does not extinguish a customary marriage, the court rejected formalistic distinctions that could be used to undermine accrued matrimonial property rights
This decision aligns customary marriage property consequences with those applicable to civil marriages, ensuring substantive equality between spouses regardless of the form of marriage. It also avoids creating a parallel system in which customary law spouses are afforded fewer protection than those married under civil law
The judgement is to be welcomed for strengthening legal certainty and safeguarding the property rights of spouses in customary marriages. It affirms the central role of section 21 of the MPA and prevents the erosion of matrimonial protections through informal or unilateral agreements However, the dissent highlights ongoing tensions between Party autonomy and protective regulation in family law, suggesting that future legislative reform may be required to clarify the precise scope of section 10(2) of the RCMA
