ConCourt decision nullifies contracts couples sign after customary marriages

Couples who chose to have customary weddings and later formalise their union with an antenuptial contract should be aware of a recent ruling by the Constitutional Court that has serious consequences for their marital regime.

This is because the ruling states that an antenuptial contract drawn up after a customary marriage to govern the property regime of their civil marriage is not worth the paper it is written on.

The Recognition of Customary Marriages Act (RCMA) was enacted in 1998 with the express purpose of granting people married in a traditional African ceremony the same rights under the law as those joined in a civil marriage under the Marriage Act.

However, Section 10 of the RCMA specifically enables couples in a customary marriage “to contract a marriage with each other under the Marriage Act”. Many couples have done this, with the intention of entrenching their legal protections and cementing their marital property regime.

Civil and customary marriages are, by default, in community of property. If couples want to be married out of community of property with accrual, or out of community of property without accrual, they must draw up an antenuptial contract before tying the knot. Couples can change their marital property regime once they are married, but this requires a postnuptial contract, which involves a far more complex legal process than a regular antenuptial contract drawn up by a lawyer.

The facts of the case

According to the judgment VVC vs JRM and Others, handed down on 21 January 2026,  VVC and JRM were married in a customary ceremony in 2011. By default, the couple were married in community of property.

In 2019, in anticipation of a civil marriage, they drew up an antenuptial contract in which they chose to be married out of community of property with accrual. They entered a civil marriage two years later, in June 2021, but their marital relationship broke down soon thereafter, and in May 2022 JRM filed for divorce.

Normally the divorce would have proceeded according to the terms of the antenuptial contract – in this case each spouse’s estate would be separate and only the property they had accrued together since their civil marriage would be divided between them. However, VVC challenged this course of action, arguing that the antenuptial contract was invalid and that the in-community-of-property regime determined by their customary marriage still stood. Under this scenario, VVC would be entitled to half of the couple’s joint estate.

The case was first heard in the High Court, which found there were constitutional questions to be answered and referred it to the Constitutional Court.

The case revolved around the following two questions:

1. Was the antenuptial contract, in fact, a postnuptial contract? If so, it would be invalid, because the legal process in drawing up a postnuptial contract to change the marital property regime involves a court decision. The Matrimonial Property Act says the couple must apply jointly to a court, and the court may, “if satisfied that: there are sound reasons for the proposed change; sufficient written notice of the proposed change has been given to all creditors of the spouses for amounts exceeding R500 … and no other person will be prejudiced by the proposed change”, authorise the new contract.
   
   
2. Was the wording of the RCMA unconstitutional in allowing for a marital property regime change without the necessary judicial oversight?

Underlying these questions was a more fundamental one: is the civil marriage a “new” marriage that replaces the customary marriage?

Judges’ decision

Six of the Constitutional Court’s nine judges delivered the majority decision, with three judges dissenting. The majority judgment held that, on the first question, the antenuptial contract was invalid, and on the second question, that the wording of the RCMA was not unconstitutional; it had just been interpreted incorrectly by the High Court.

The decision re-emphasised the transformative purpose of the RCMA: to remove the inequality inherent in past laws, which had left women and children “singularly marginalised and vulnerable” and to place customary marriages on an equal footing with civil marriages.

“The [Act] makes plain, in no uncertain terms, that in our law there is no hierarchy in status of marriages and that civil marriages are not to be regarded as superior in status and legal effect over customary marriages. To do so would be to undo all the transformative efforts of our new democratic dispensation in this field of the law,” Judge Steven Madjiet said in the judgment.

According to the judgment, a customary marriage is not dissolved by a subsequent civil marriage – there is one continuous marriage that begins under customary law and continues under civil law. Thus, the only way the couple could have changed their property regime was to go through the far more involved legal process of concluding a postnuptial contract.

Where to for similar couples?

Couples in this position must now recognise that their contracts are likely to be invalid. The dissenting judgment, articulated by Judge Owen Lloyd Rogers, states: “Countless antenuptial contracts of this kind, such as the one in the present case, have no doubt been notarised and registered. And until the present case, so far as I can ascertain, such [contracts] have been accepted by our courts as valid.”

Phumelelo Simelane, managing director of Simelane Attorneys in Sandton, says many couples married under customary law sought to “convert” their unions into civil marriages in terms of Section 10 of the RCMA. “The difficulty, however, arose from the assumption that such a civil marriage creates a new proprietary regime capable of being governed by an antenuptial contract,” he says.

The Constitutional Court has now clarified that position, Simelane says. “A customary marriage, once validly concluded, continues to exist and is not replaced by the subsequent civil marriage. The proprietary consequences attach at the point of the customary marriage. Accordingly, any antenuptial contract entered into at the stage of the civil marriage is ineffective, as there is no ‘new’ marriage to regulate. The parties are already married, and their matrimonial property system is already in place, typically one in community of property.

“For these couples, the appropriate remedy is a section 21 application in terms of the Matrimonial Property Act, which allows spouses to apply to court to change their matrimonial property system, subject to the court being satisfied that no creditors or third parties will be prejudiced. Once such application has been granted by the court, these spouses may enter into a postnuptial agreement,” Simelane says.