The case of VVC v JRM and Others [2026] ZACC 2 stands as a definitive shield for the status of customary marriages. For years, there seemed to be a vague understanding among couples about the implications of customary marriage laws. Married couples have been observed to perceive the transition into civil marriages from customary marriages as a “reset button”, where they entered into a customary marriage then later change into a civil marriage, for their legal rights.
The Constitutional Court judgement in this case shuts that door as it centres its focus on reaffirming the status of the Recognition of Customary Marriages Act 120 of 1998 (hereinafter the RCMA), and the interpretation of provisions tempering with customary marriages in the act thereof.
ANTENUPTIAL CONTRACTS IN SOUTH AFRICA
When two parties decide to marry each other, they also make a joint decision on the appropriate marriage property regime they wish to utilise in regulating their marriage. This means that they may elect to enter into a marriage in community of property, where all financial responsibilities (assets and liabilities), whether acquired individually before the wedding or together during the marriage are shared between the parties and to be distributed equally upon dissolution by death or divorce.
Couples may also elect to enter into a marriage outside community of property, enabling them to keep their financial identities distinct by way of entering into an antenuptial contract (ANC). This is a legal agreement which ensures that the marriage is “out of community of property,” effectively keeping their estates separate. Parties must enter into this agreement before they marry.
In the case of VVC v JRM and Others, the court was asked to decide whether an ANC signed after a customary marriage but before a civil marriage was legally valid.
THE LEGAL FRAMEWORK OF THE CUSTOMARY MARRIAGES AND PROPERTY RIGHTS
The RCMA provides for the legal framework of customary marriages. Its purpose as specified in the Act is to ensure that customary marriages are recognised and regulated within the South African laws in accordance with the Constitution of South Africa, 1996.1
The Act provides that marriages entered into by way of customary laws are automatically deemed to be in community of property unless there is a contract entered into between the parties, wherein it stipulates the division of the parties assets upon the marriage dissolving.2 The Act also provides equal status to the parties in the marriage to make decisions including major financial decisions.3
However, there still tends to be confusion, particularly in cases of divorce, around assets protection as a result many couples have opted to enter into antenuptial contracts to maintain their financial independence.
THE “CONVERSION WINDOW”: CONTRACTUAL INTERFERENCE IN EXISTING MARRIAGES
Married couples and legal practitioners have treated the transition from a customary union to a civil union like a window opportunity to alter their property regime mostly from the customary default of marriage in Community of Property to the civil default of marriage out of Community of Property. This misconception rises from the perceived interpretation of section 10(2) of the RCMA. This section is treated as a shift to a new marriage beginning, which therefore provides for a new contract. The Constitutional Court in this case centres on the interpretation of section 10(2) and the validity of the antenuptial contract entered into later thereof.
1 Section 2 of The Constitution of the Republic of South Africa Act 108, 1996
2 Section 7(2) of The Recognition of customary marriages act 120 of 1998
3 Section 6 of the RCMA
4 “Antenuptial Contracts (ANC): A Guide to Safeguarding A Guide to Safeguarding Your Assets and Marriage in South Africa” https://www.divorcelaws.co.za
The confusion around this section lies in whether the customary marriage changes into a civil marriage, co-exists with the civil marriage or terminates when the civil marriage is concluded. In interpreting this section, the court noted the following:
That the challenged provision must be interpreted purposefully within the context of the RCMA as a whole and taking into account the other sections, particularly section 7(5) of the RCMA. Section 7(5) provides that section 21 of the Matrimonial Property Act 88 of 1984 applies to a customary marriage entered into after the commencement of the RCMA in which the husband does not have more than one spouse.5 Additionally, section 21 of the Matrimonial Property Act provides that:
“A husband and wife, whether married before or after the commencement of this Act, may jointly apply to a court for leave to change the matrimonial property system, including the marital power, which applies to their marriage, and the court may, if satisfied that-
(a) there are sound reasons for the proposed change;
(b) sufficient notice of the proposed change has been given to all the creditors of the spouses; and
(c) no other person will be prejudiced by the proposed change,
order that such matrimonial property system shall no longer apply to their marriage and authorize them to enter into a notarial contract by which their future matrimonial property system is regulated on such conditions as the court may think fit.”
In essence, one cannot use section 10(2) as a shortcut escape without following the proper requirements laid out in section 7(5).
CONCLUSION: REAFFIRMING THE DIGNITY OF CUSTOMARY UNIONS
The court noted that the first marriage entered into being the customary marriage does not become dissolved upon the changes of the marriage property regimes but is rather continuous. This means that where there is an existing antenuptial contract, the parties can only execute the antenuptial contract entered into initially by the parties, and all the other contracts entered into afterwards are regarded as postnuptial contracts.
Through this judgment an important correction on the position of customary marriages is provided. The court highlights the finality and complete legal status of customary marriages. Once the customary marriage is concluded, there is an existing marriage between the parties which can only be dissolved by way of dissolution. A further transition into a civil marriage does not dissolve the existing customary marriage – Para 86
(5 Section 21 of the Matrimonial Property Act 88 of 1984).
The parties can only vary their matrimonial property system through judicial oversight as provided for in section 21 of the MPA ensures that the community of property status remains safe until properly dissolved by the parties through a postnuptial contract (para 94). This way, parties can change their marital regime in a transparent, fair manner ensuring the protection of both spouses. Therefore, the court declared the ANC concluded before the civil marriage, after the customary marriage invalid, due to that section 21 was not followed.
REFERENCES
Section 7(2) of the Recognition of Customary Marriages Act 120 of 1998.
Section 6 of the Recognition of Customary Marriages Act 120 of 1998.
See Gumede v President of the Republic of South Africa and Others [2008] ZACC 23; 2009 (3) SA 152 (CC).
Section 87(1) of the Deeds Registries Act 47 of 1937.
Section 21(1) of the Matrimonial Property Act 88 of 1984.
Written by Thandekile Lekala, candidate legal practitioner, under the supervision of Nyeleti Vanesa Khosa, attorney Attorney – Mphela & Associates.