- The Constitutional Court has clarified that Section 10(2) of the Recognition of Customary Marriages Act does not permit spouses to change their matrimonial property regime by written agreement alone.
- Any antenuptial contract concluded after a customary marriage, even if signed before a subsequent civil marriage, is a postnuptial contract and such an agreement requires court approval under the Matrimonial Property Act.
- This judgment reinforces constitutional protection for women in customary marriages and rejects interpretations that would weaken essential judicial safeguards.
If spouses marry under customary law, they cannot later sign an antenuptial contract to take property out of the joint estate unless a court approves it. That is the rule confirmed by the Constitutional Court in VVC v JRM and Others.
The apex court confronted a practice of couples already married under customary law signing so-called antenuptial contracts before entering a civil marriage, in an attempt to escape the community of property without judicial scrutiny.
The majority judgment, delivered by Justice Steven Majiedt, shuts that door completely. It confirmed that Section 10(2) is not a loophole. It does not permit private agreements to rewrite matrimonial property regimes, nor can it be used to dilute court-mandated protections, particularly for women in customary marriages.
How the dispute reached the Constitutional Court
VVC and JRM married under customary law in August 2011. By operation of law, their marriage was in a community of property. Years later, they signed what was styled as an antenuptial contract, purporting to regulate a future civil marriage as out of the community of property with accrual. They then entered into a civil marriage in June 2021 without first dividing their joint estate.
When the relationship collapsed, JRM sought to enforce the antenuptial contract during divorce proceedings. VVC resisted, arguing that the agreement was invalid and that Section 10(2), if interpreted to allow such agreements without court supervision, would violate the Constitution’s guarantees of equality and property rights.
The High Court agreed with VVC, holding that the agreement was in truth a postnuptial contract, concluded after a marriage already existed, and therefore invalid without a court order under Section 21 of the Matrimonial Property Act. The court went further, declaring section 10(2) unconstitutional for permitting unequal and potentially exploitative outcomes. That declaration required confirmation by the Constitutional Court.
What Section 10(2) really does, according to the majority
The Constitutional Court took a different route. Rather than striking down Section 10(2), the majority reinterpreted it. Justice Majiedt stressed that the provision regulates a change in the marriage system, not a change in the matrimonial property regime.
“Section 10 seeks to regulate, not a change in matrimonial proprietary regime, but a change in marriage system from a customary to a civil marriage,” he wrote, adding that “what is changed by the impugned provision is the marriage system and not the matrimonial property system.”
On this reading, Section 10(2) never authorised spouses to rewrite their property consequences by signing a document between themselves. Once a customary marriage exists, any attempt to alter the proprietary regime must comply with Section 21 of the Matrimonial Property Act, which requires judicial oversight.
Justice Majiedt was unequivocal: “An ANC can only be concluded before a marriage.” Where spouses are already married, any such agreement is postnuptial and can only be concluded with leave from a court.
Judicial oversight is not optional
Central to the judgment is the court’s insistence that judicial oversight is substantive, not bureaucratic. The requirement to approach a court before changing a matrimonial property regime is designed to protect the economically weaker spouse and to prevent coercion, pressure, or uninformed consent.
“Judicial oversight when changing matrimonial property regimes is not a mere formality and is no trivial matter at all,” Justice Majiedt warned. “It is a structured process that may give a vulnerable spouse time to seek legal advice and to reflect on the consequences of giving up entrenched property rights.”
He continued: “This emphasis is inseparable from the court’s recognition of historical reality. Customary marriages, and the women within them, were systematically marginalised under colonialism and apartheid. The Recognition Act’s default position of community of property is a constitutional corrective, not an accident of drafting.
“The recurring theme is the protection of a vulnerable and systemically disadvantaged group, black women… in light of the dreadful historic discrimination against customary marriages.”
The antenuptial contract fails
Applying this interpretation, the outcome for the parties was straightforward. The so-called antenuptial contract was invalid because the parties never approached a court under Section 21 of the Matrimonial Property Act. Their marriage, therefore, remained one in community of property.
Importantly, the court rejected the idea that the civil marriage dissolved or replaced the customary marriage. A customary marriage, it emphasised, can only be terminated by a decree of divorce under Section 8 of the Recognition Act.
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