It is common in South Africa for couples to conclude a customary marriage and later formalize their union with a civil marriage. But what happens to the property regime during this transition? The Constitutional Court recently addressed this in VVC v JRM.
The Legal Question
A couple married under customary law. Because they did not sign an Antenuptial Contract (ANC) beforehand, their marriage was automatically in community of property. Eight years later, they decided to conclude a civil marriage. Just before the civil ceremony, they signed an ANC aiming to change their regime to out of community of property with accrual. When they later divorced, the wife argued the ANC was invalid.
Section 10(2) of the Recognition of Customary Marriages Act (RCMA) states that when spouses in a customary marriage contract a civil marriage, the marriage is in community of property "unless such consequences are specifically excluded in an antenuptial contract"[cite: 5]. The question was: Can you sign an ANC between the customary and civil marriages?
What the Court Decided (The Majority)
In VVC v JRM [2026] ZACC 2, the majority of the Constitutional Court (led by Majiedt J) ruled that the ANC was invalid, and the couple remained married in community of property[cite: 5].
The Court held that concluding a civil marriage does not dissolve the existing customary marriage; it merely changes the governing legal system in a single, continuous marriage relationship[cite: 5]. Because it is a continuous marriage, an agreement signed eight years in is not an "ante" (before) nuptial contract; it is a postnuptial contract[cite: 5].
Under South African law, existing spouses cannot change their matrimonial property regime through a private contract. They must apply to the High Court under Section 21 of the Matrimonial Property Act (MPA)[cite: 5]. This judicial oversight is mandatory to protect vulnerable spouses and creditors[cite: 5]. Therefore, Section 10(2) of the RCMA does not create a loophole to bypass the courts[cite: 5].
📝 The Dissenting View
Note: This is not binding law, but important context. Rogers J dissented, arguing that Section 10(2) explicitly allows spouses to sign an ANC before the "civil nuptials" to regulate the civil marriage going forward[cite: 5]. He believed this protected party autonomy without harming the existing joint estate[cite: 5]. However, the majority disagreed, prioritizing judicial oversight and the continuity of the original customary marriage[cite: 5].
What This Means for Couples
- One Marriage, One Start: If you are already married under customary law, you cannot simply sign an ANC to change your property regime before a civil wedding[cite: 5].
- Judicial Oversight is Required: To transition from in community of property to out of community, you must undergo a formal High Court application under Section 21 of the MPA[cite: 5].
⚠️ What This Case Does Not Mean
This case does not mean customary marriages are inferior; in fact, the judgment reinforces their equal status by insisting they do not "disappear" when a civil marriage occurs[cite: 5]. It also does not mean you can never change your regime; it merely insists you use the proper, court-supervised channels to do so[cite: 5].