CUSTOMARY LAW AND THE CONSTITUTION (PART II): UNPACKING THE CONSTITUTIONAL COURT'S RULING IN VVC V JRM

Recent jurisprudence from the Constitutional Court has added welcomed clarity to the often confusing intersection between customary law, civil marriages and matrimonial property regimes. In VVC v JRM and Others, the Court was asked to confirm a High Court order declaring section 10(2) of the Recognition of Customary Marriages Act 120 of 1998 (“RCMA”) unconstitutional. While the Constitutional Court declined to confirm that order, its judgment has far reaching consequences for couples who move between customary and civil marriage systems, something that occurs frequently in practice.

The case highlights an issue family law practitioners encounter with increasing regularity, spouses who are married under customary law later formalise their relationship through a civil ceremony, often without fully appreciating the legal consequences of what they are doing, particularly in relation to their joint estate.

1.    The issue before the Court

1.1.        The matter arose from a divorce dispute between spouses who had:

1.1.1.   concluded a valid customary marriage in community of property; and

1.1.2.   several years later, entered into a civil marriage with each other, accompanied by an antenuptial contract ("ANC”) purporting to change their matrimonial property regime to out of community of property with accrual.

At the centre of the dispute was section 10(2) of the RCMA. That section provides that when spouses to a customary marriage marry each other civilly, the marriage is in community of property, unless this is excluded by an ANC. The High Court took the view that section 10(2) was unconstitutional because it appeared to permit spouses to change their matrimonial property regime without judicial oversight. In the Court’s view, this created a real risk of economically vulnerable spouses, most often women, being deprived of property rights without adequate protection. The matter was accordingly referred to the Constitutional Court for confirmation.

2.    What the Constitutional Court decided

The Constitutional Court did not confirm the declaration of constitutional invalidity. That outcome, however, should not be misunderstood as giving spouses a free reign to restructure their financial affairs without regard to existing safeguards. Instead, the Court clarified how section 10(2) must properly be understood and applied.

2.1. First, the Court reaffirmed that a customary marriage is not dissolved merely because the spouses later marry each other civilly. In terms of the RCMA, a customary marriage can only be dissolved by death or by a decree of divorce. A civil ceremony does not, on its own, bring that marriage to an end.

2.2. Second, the Court emphasised that South African law does not recognise dual marriages. When spouses convert a customary marriage into a civil marriage, the civil marriage subsumes the customary marriage as a matter of legal form. Crucially, however, this does not extinguish the patrimonial consequences that already exist.

2.3. Third, and most importantly for practical purposes, the Court made it clear that section 10(2) does not allow spouses to change their matrimonial property regime by agreement alone after a marriage has already come into existence. An antenuptial contract can only be concluded before a marriage. Once spouses are already married, whether under customary or civil law, any change to the matrimonial property system must take place under judicial supervision in terms of section 21 of the Matrimonial Property Act.

2.4. Finally, the Court confirmed that any agreement concluded after a customary marriage, which purports to alter the property regime without court approval, is invalid and unenforceable. Put simply, the Constitutional Court protected vulnerable spouses not by striking down section 10(2), but by interpreting it in a manner consistent with constitutional values, long-standing matrimonial property principles, and the requirement of judicial oversight.

3.    Why this judgment matters

This decision is particularly significant for African families who live at the intersection of customary practices and statutory law. It reaffirms the equal status of customary marriages and rejects any lingering notion that a civil marriage is somehow “superior” or capable of resetting legal consequences by default.

It also prevents the erosion of joint estates through informal arrangements or misunderstood documents. In practice, courts frequently see situations where one spouse, often the wife, signs an antenuptial contract years into a marriage without fully appreciating that it could strip her of rights she has accrued over time.

The judgment further reinforces the Constitutional Court’s consistent approach to protecting women in customary marriages, building on earlier case law that recognises the historical vulnerability of women in these contexts.

Finally, it provides legal certainty. Spouses cannot simply “contract out” of community of property after marriage unless they approach a court and satisfy the statutory safeguards designed to protect both spouses and creditors.

4.    A practical example

Consider a couple married under customary law in community of property. After ten years, during which the wife contributes to the household and assists in building the family estate, the parties decide to conclude a civil marriage. The husband presents an antenuptial contract, explaining that it is “just a formality” required for the civil ceremony. No court application is brought.

Under the Constitutional Court’s interpretation, that antenuptial contract is legally ineffective. The joint estate remains intact unless and until a court orders otherwise. This interpretation prevents exactly the kind of quiet dispossession that the Constitution seeks to avoid.

5.    Practical implications for couples

5.1.      For couples married under customary law who later wish to conclude a civil marriage:

5.1.1.   A civil ceremony does not wipe the slate clean.

5.1.2.  Any attempt to change the matrimonial property regime must follow a formal court process.

5.1.3.  Antenuptial contracts signed after a customary marriage, without judicial oversight, have no legal effect, regardless of the parties’ intentions.

This judgment should be seen as a cautionary tale. Good intentions and private agreements are no substitute for proper legal advice and compliance with statutory requirements.

6.    Conclusion

The Constitutional Court’s decision in VVC v JRM reinforces a central theme in South African family law. Customary law is living law, but it operates within a constitutional framework that prioritises equality, dignity and the protection of the vulnerable. Rather than weakening customary marriages, the judgment strengthens their legal standing and ensures that transitions between customary and civil systems do not become a loophole for injustice. Our firm has extensive experience in navigating the intersection of customary law, civil marriage and constitutional principles. For assistance, contact us at info@rouxlegal.com to schedule a consultation.

By Duduzile Zulu

(Candidate Attorney)

05 March 2026

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