Authored By: Makondo Nyeleti Latoya
University of South Africa
In January 2026, the Constitutional Court of South Africa resolved a contentious issue in family law, whether an antenuptial contract, herein referred to as the ANC, concluded after a customary marriage, and before a subsequent civil marriage, can validly alter the matrimonial property regime. This Article examines the legal foundations, statutory framework, the majority and dissent in VVC v JRM and others (2026), and whether the constitutional court’s decision strikes a just and constitutionally sound balance between autonomy of contract, legal certainty and the protection of vulnerable spouses
ANC in South Africa are governed primarily by the Matrimonial Property Act 88 of 1984 (MPA) and the Recognition of Customary Marriages Act 120 of 1998 (RCMA), alongside general Constitutional principles of equality, dignity, and property rights under the Constitution of the Republic of South Africa 1996, referred to as The Constitution, 1996. Traditionally, the ANC must be concluded before marriage in order to regulate the matrimonial property system of that marriage. However, the legal treatment of ANC’s in the unique context of customary unions, often later followed by civil marriages, had been uncertain until the Constitutional Court’s January 2026 Judgment
The question for constitutional scrutiny was whether declaring such antenuptial contracts invalid after marriage undermines fairness, legal certainty, and the constitutional rights of spouses, especially women that are historically vulnerable under customary law
The interest of this topic has gained momentum earlier in January 2026 following the divorce proceeding of the famous International Grammy award winner Nkosinathi Maphumulo with the stage name Black Coffee in October 2025. Who recently divorced his wife and claimed that they were not married in community of property, following the wife claiming half of his assets and wealth. Black Coffee acknowledged that a customary marriage has indeed take place and that some of the requirements for customary marriage and its validity were observed. The Constitutional Court made a ruling that for as long as the Antenuptial Contract is signed after the marriage has taken place and is therefore a postnuptial Contract and is not the regulate the marriage that has already been entered into.
This confusion was answered by an Author Anthony Diala in his Article “what is Customary Marriage and how does it fit into South African law?
Matrimonial Property Act 88 of 1984 (MPA)
The MPA provides that spouses may regulate their Matrimonial Property regime before marriage via an Antenuptial contract usually excluding community of property and, optionally excluding or including accrual. The Act also provides a mechanism for altering the matrimonial Property regime during marriage, postnuptially, through a joint application to the High Court under Section 21 requiring judicial oversight and notice to creditors to protect all concerned
Recognition of Customary Marriages Act 120 of 1998
Under the RCMA, a valid customary marriage is recognized as equal in status to a civil marriage. Unless spouses have concluded an ANC prior to the customary ceremony, the marriage is automatically in community of property and profit and loss by default. The RCMA historically allowed spouses to conclude an ANC under section 10(2), but questions arose regarding the constitutional validity of this provision when applied after marriage and without judicial oversight
Constitutional Principles
The key Constitutional rights that are implicated includes:
- Section 9 – Equality before the law and protection against unfair discrimination, particularly for women in customary marriages
- Section 25 – Protection against arbitrary deprivation of property
- Section 10 – Human Dignity
These rights must be reconciled with the rule of law, legal certainty and freedom of contract especially regarding matrimonial property arrangements
Case Law
The case of VVC v JRM and Others (2026) concerned a couple JRM and VVC who marriage in terms of customary law in 2011without an Antenuptial contract, placing them in community of property. In 2019, 8 years after the customary marriage, they executed a notarial ANC before concluding a civil marriage in 2021 in an attempt to alter their matrimonial property regime to out of community of property. Upon divorce in 2022, enforcement of the ANC was sought by the husband
The Gauteng High Court declared the ANC invalid and unconstitutional in part, as it was concluded after the customary marriage without judicial oversight as required under section 21 of the MPA. It held section 10(2) of the RCMA unconstitutional to the extent that it permitted such contracts without court approval because it discriminated against spouses married under customary law On appeal, the Constitutional Court’s majority dismissed the challenge to section 10(2) and upheld the invalidity of the ANC on the basis that:
- A valid ANC must precede the marriage it purports to regulate, because the spouses were already marriage under customary law when they signed the contract, it was in substance, s postnuptial agreement requiring judicial oversight under section 21 of the MPA
- A civil marriage concluded while a customary marriage subsist does not terminate the latter, it is a single continuous union for legal purposes, thus, the ANC was not concluded ante marriage and could not alter the matrimonial property regime without a proper court order
- Judicial oversight protects vulnerable spouses and creditors, ensuring fairness and protecting rights under The Constitution
Consequently, the parties remained married in community of property from the customary union onwards
Dissenting Judgments
Three Judges dissented, arguing that a civil marriage should be regarded as a separate legal event, allowing parties to conclude a valid ANC at that point. The dissent emphasized autonomy of contract and the right to structure matrimonial property affairs without excessive judicial intrusion. However, the majority decision remains binding
Fairness and Constitutionality
The constitutional court’s majority ruling reinforces legal certainty by adhering to clear statutory requirements, ANC must be concluded before the marriage they regulate, and postnuptial modifications need court supervision. This protects both spouses and creditors from unpredictable and potentially prejudicial alterations of matrimonial property regimes without due process
The court emphasis on judicial oversight reflects a constitutional commitment to substantive equality. Women in customary marriages are statistically more likely to be economically vulnerable, absent court scrutiny, they may unknowingly forfeit rights to assets
The requirement for section 21 applications ensures that both parties understand and consent to the changes, protecting weaker spouses from exploitation
Autonomy versus oversight
However, critics of the majority judgment argues that it unduly restricts contractual autonomy, particularly where parties are sophisticated and agree freely to matrimonial property arrangements. The constitutional challenge partly stemmed from this debate, but the majority found judicial oversight a proportionate limitation given the risk of unequal bargaining power.
Practical and Broader implications
The VVC decision unsettles long-standing practice where spouses married under customary law later enters into a civil marriage with ANC, assuming those contracts were valid. It affects existing deeds registry entries, credit security arrangements, divorce settlements and property planning for thousands of couples. Financial institutions may have to reassess security holdings if purported ANC’s are invalid From a socio-legal perspective, the judgment affirms the constitutional status of customary marriages while insisting that changes to matrimonial property regimes respect procedural protections embedded in a statute and the constitution/ it may prompt legislative amendments to RCMA or MPA to clarify uncertainties
In conclusion, the constitutional court ruling on ANC signed after customary marriage reflects a holistic constitutional balancing exercise. By invalidating such contracts absent judicial oversight and reaffirming procedural safeguards, the court prioritized the protection of vulnerable spouses, legal certainty, and constitutional equality. While this outcome may be perceived as restrictive in terms of contractual autonomy, it aligns with constitutional imperatives and mitigates unfair deprivation of property. In a legal landscape where customary and civil forms of marriage increasingly intersect, the decision provides clarity and reaffirms that fairness in matrimonial property regulation must not be sacrificed for expedience or tradition
Bibliography
Case law
- VVC v JRM and Others [2026] ZACC 2
- Ex Parte Spinazze 1985 (3) SA 650 (A)
Legislation
- Recognition of customary marriage Act 120 of 1998
- Matrimonial Property Act 88 of 1984
- The Constitution of the Republic of South Africa, 1996
Scholar writings
- Anthony Diala, Legal pluralism and specialist in customary law marriages, Polity, 24 October 2025
