The Constitutional Court has delivered an important judgment clarifying the legal relationship between customary marriages and later civil marriages concluded between the same spouses. In VVC v JRM and Others [2026] ZACC 2, the Court confirmed that a customary marriage is not terminated when the parties subsequently marry each other under civil law, and that the original matrimonial property regime remains in force unless lawfully changed.
Customary Marriages and Community of Property
In terms of South African law, a valid monogamous customary marriage is automatically in community of property, unless an antenuptial contract is concluded before the marriage. Many couples assume that a later civil marriage allows them to “start afresh” by signing an antenuptial contract. The Constitutional Court has now made it clear that this is incorrect.
The Dispute Before the Court
The parties had entered into a customary marriage without an antenuptial contract, resulting in a marriage in community of property. Several years later, they concluded a civil marriage and signed an agreement purporting to exclude community of property. When divorce proceedings followed, one spouse sought to rely on this agreement. The key issue was whether section 10(2) of the Recognition of Customary Marriages Act permits spouses to alter their matrimonial property regime by concluding a civil marriage with each other, without court approval.
One Continuous Marriage
The Court held that a customary marriage is not dissolved by a subsequent civil marriage between the same parties. There is only one continuous marriage, and the civil marriage merely changes the form of recognition, not the existence of the marriage itself. As a result, the matrimonial property regime established at the time of the customary marriage continues to apply.
Why the Antenuptial Contract Was Invalid
An antenuptial contract must be concludedbefore a marriage. Because the partieswere already married undercustomary law, the agreement they signed was, insubstance, a postnuptial agreement. Such agreements are only valid if approved by a court in terms of section 21 of the Matrimonial Property Act, which requires judicial oversight and protection of creditors. As this process was not followed, the agreement was declared invalid.
Key Takeaways
– A customary marriage remains in existence even after the parties conclude a civil marriage with each other.
– A civil marriage does not reset or replace the matrimonial property regime.
– Any post-marriage change to the property system requires court approval.
– Couples who wish to marry out of community of property must sign an antenuptial contract before the customary marriage is concluded.
Should you require assistance with changing your matrimonial property regime, feel free contact our experienced team for a further explanation and assistance.
by Jaques van den Ende