The Constitutional Court has recently delivered a significant judgment reaffirming that customary marriages and civil marriages hold equal legal status. Importantly, the Court clarified the implications and validity of antenuptial contracts within the context of customary marriages.

On 21 January 2026, the Constitutional Court (“ConCourt”) handed down judgment in VVC v JRM and Others 2026 (3) BCLR 234 (CC) (21 January 2026), considering whether section 10(2) of the Recognition of Customary Marriages Act 120 of 1998 (“Customary Marriages Act”) is constitutional. This followed a prior decision of the Gauteng Division of the High Court in Pretoria, which had declared the section unconstitutional and referred the matter to the ConCourt for confirmation.

Legislative framework

Section 10 of the Recognition of Customary Marriages Act regulates the relationship between customary and civil marriages.

• Section 10(1) allows spouses in a valid customary marriage to conclude a civil marriage with each other, provided neither spouse is in a subsisting customary marriage with a third party.
• Section 10(2) provides that when such a civil marriage is concluded, the marriage is deemed to be in community of property, unless the spouses execute an antenuptial contract beforehand.

Section 21 of the Matrimonial Property Act 88 of 1984 governs changes to the matrimonial property system after marriage. Spouses may jointly apply to the court for approval to change their marital regime, provided that:

• There are sound reasons for the change;
• Creditors have been properly notified; and
• No one will be prejudiced.

Only after court approval may spouses execute a notarial contract altering their matrimonial property system.

Background to the case

On 5 August 2011, VVC and JRM entered a customary marriage. As no antenuptial contract was concluded beforehand, their marriage defaulted to in community of property.

During 2019, the spouses executed an agreement intended to serve as an antenuptial contract regulating a future civil marriage as one out of community of property with accrual.

During 2021, the parties formally concluded a civil marriage.

In 2022, divorce proceedings commenced, during which the validity of the 2019 antenuptial contract became the central issue.

Issues before the ConCourt

The key issue was whether section 10(2) is constitutional, as it effectively permits spouses in a customary marriage to enter a civil marriage with a different matrimonial property regime without prior court oversight.

The Court also needed to determine whether an antenuptial contract concluded after a customary marriage is valid.

Findings of the ConCourt

1. An antenuptial contract cannot be concluded after a customary marriage

The ConCourt found that once a customary marriage is validly concluded, it creates an immediate matrimonial property system, usually in community of property. Therefore, an antenuptial contract must be executed before the customary marriage. Any agreement concluded after the customary marriage cannot qualify as an antenuptial contract.

2. Postnuptial contract requires court approval

The contract concluded by the spouses in 2019 was deemed a postnuptial agreement and not an antenuptial contract. For such an agreement to be valid, compliance with section 21 of the Matrimonial Property Act is mandatory. This means the spouses should have applied to court for authorisation to change their marital regime. Without such approval, the agreement has no legal effect.

3. Section 10(2) of the Recognition of Customary Marriages Act is constitutional

The Court confirmed that section 10(2) does not violate constitutional principles. Instead, it reinforces that:

• Customary marriages are fully recognised as equal to civil marriages.
• Matrimonial property consequences arising from a customary marriage cannot be altered retroactively without judicial oversight.

Significance of the judgment

This judgment clarifies that couples married under customary law cannot later attempt to alter their matrimonial property system through an antenuptial contract. Once a joint estate exists, it cannot be undone by private agreement.

The only lawful route to change the marital regime after a customary marriage is through a section 21 court application, ensuring protection for creditors, spouses, and third parties.