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Introduction
The landmark judgment in VVC v JRM and Others, handed down on 21 January 2026, marks a significant shift in how in how section 10 of the Recognition of Customary Marriages Act 120 of 1998 (RCMA) is to be understood and applied. The Constitutional Court was called upon to consider the legal consequences of entering into a civil marriage after a customary marriage has already been concluded.
The Court’s ruling has sent waves through the public, with many couples questioning the validity of their matrimonial property regimes. This article briefly outlines the judgment and unpacks its implications for couples married under customary law.
A brief breakdown of the case
In 2011, a couple entered into a customary marriage. Several years later, in 2019, the couple entered into an antenuptial contract (ANC) and concluded a civil marriage, relying on section 10(2) of the RCMA, which states:
“When a marriage is concluded as contemplated in subsection (1), the marriage is in community of property and of profit and loss unless such consequences are specifically excluded in an antenuptial contract which regulates the matrimonial property system of their marriage.”
The central issue before the High Court was whether spouses in a customary marriage are legally allowed to conclude an ANC after the customary marriage has already been entered into. Historically, customary marriages were regarded as being ‘in community of property’ unless an ANC was concluded before the customary marriage.
The High Court found that the section allowed spouses married under customary law to change their matrimonial property regime from in community of property to out of community of property by mere written agreement, without “judicial oversight”. Therefore the High Court declared section 10(2) of the RCMA invalid and unconstitutional.
The High Court’s interpretation aimed to protect vulnerable spouses and to ensure that changes to matrimonial property regimes are made voluntarily, and spouses know and understand the legal and proprietary consequences of such a change.
The Constitutional Court’s findings
The Constitutional Court rejected the High Court’s interpretation. The Constitutional Court held that, when properly interpreted, section 10(2) does not allow spouses in customary marriages to change their matrimonial property regime without judicial oversight. The Court clarified that a customary marriage does not terminate when a civil marriage is later concluded. Instead, the customary marriage continues to exist and is subsumed into the civil marriage, creating and continuing the marriage that can only be dissolved by death or divorce.
The Constitutional Court agreed with the High Court that the ANC in this case was invalid, not because section 10(2) is unconstitutional, but because the ANC was entered into after the customary marriage had already been concluded. Any change from in community of property to out of community of property must comply with section 21 of the Matrimonial Property Act, which requires a court application and post nuptial agreement to be concluded.
The Constitutional Court further held that section 10(2), when correctly interpreted, does not undermine equality or permit arbitrary deprivation of property. neither does it authorise the conclusion of an ANC after the conclusion of a customary marriage without court order.
What this judgment means for South Africans who entered into an ANC after their customary marriage
This judgment affirms that customary marriages are valid, enforceable, and equal in status to civil marriages. Spouses are entitled to enter into an ANC before the conclusion of their customary marriage. Where spouses wish to change their matrimonial property regime after the customary marriage has already been concluded, this can still be done, but only through a formal court application in terms of section 21 of the Matrimonial Property Act.
Simply put, couples married customarily who wish to be married out of community of property at a later stage must apply to court for a change in their matrimonial property regime. This process ensures that the proprietary consequences of the marriage are fully considered and that the interests of both spouses and creditors are protected.
At VDVD, we specialise in family law, particularly changes to matrimonial property regimes and the drafting and registration of antenuptial and postnuptial agreements. Should you require assistance or clarity on your matrimonial property regime, contact us today.