Customary Marriages, Antenuptial Contracts, and Divorce: Constitutional Court Guidance

VVC v JRM and Others [2026] ZACC 2

On 21 January 2026, the Constitutional Court delivered an important family law judgment clarifying the legal consequences of customary marriages, antenuptial contracts, and matrimonial property regimes in South Africa.

The decision has significant implications for couples married under customary law, particularly where a civil marriage is later concluded between the same spouses, and where divorce or property division becomes an issue.

Background: Customary Marriage, Civil Marriage, and Property Regimes

The parties in this matter were married to each other by customary law in 2011. In terms of the Recognition of Customary Marriages Act 120 of 1998, a customary marriage is, by default, in community of property, unless a valid antenuptial contract is concluded before the marriage.

Several years later, in 2019, the parties signed an agreement intended to regulate the property consequences of a future civil marriage as out of community of property with accrual. They then concluded a civil marriage in 2021, without dividing the joint estate created by the customary marriage.

When divorce proceedings were later instituted, a dispute arose regarding whether the antenuptial contract was valid and which matrimonial property regime applied.

Can You Sign an Antenuptial Contract After a Customary Marriage?

The Constitutional Court confirmed that once a marriage exists, an antenuptial contract can no longer be concluded.

Because the parties were already married under customary law, the agreement signed years later could not qualify as a valid antenuptial contract. Instead, it amounted to a postnuptial contract, which is only legally effective if approved by a court in terms of section 21 of the Matrimonial Property Act.

As no court approval had been obtained, the agreement was declared invalid and unenforceable.

A Civil Marriage Does Not End a Customary Marriage

A key finding of the Court was that a civil marriage between spouses who are already married under customary law does not terminate the customary marriage.

A customary marriage can only be dissolved by death or a decree of divorce. The later civil marriage does not create a new marriage relationship, nor does it end the existing customary marriage.

As a result, the joint estate created by the customary marriage continued to exist, and the parties remained married in community of property.

Section 10(2) of the Recognition of Customary Marriages Act

The High Court had declared section 10(2) of the Recognition of Customary Marriages Act unconstitutional. However, the Constitutional Court declined to confirm this finding.

The Court clarified that, properly interpreted, section 10(2) does not allow spouses to change their matrimonial property regime without judicial oversight. Any change to a marriage in community of property must still comply with section 21 of the Matrimonial Property Act and requires court approval.

Accordingly, section 10(2) remains constitutionally valid.

What This Means for Divorce and Family Law Matters

This judgment has important consequences for family law and divorce proceedings:

• Couples married under customary law are automatically married in community of property.

• An antenuptial contract signed after a customary marriage is not valid.

• A later civil marriage does not change the existing property regime.

• Any attempt to change a matrimonial property system after marriage requires court approval.

• Many agreements commonly believed to be valid antenuptial contracts may, in fact, be unenforceable.

Why This Judgment Matters for Couples Married Under Customary Law

The Constitutional Court reaffirmed that customary marriages enjoy full legal recognition and protection under South African law. The decision protects economically vulnerable spouses and ensures that changes to matrimonial property regimes cannot be made informally or without judicial oversight.

For couples facing divorce, the judgment highlights the importance of understanding how and when property regimes can lawfully be altered.

Conclusion: Legal Certainty for Customary Marriages and Divorce

The Constitutional Court’s decision provides much-needed clarity on the interaction between customary marriages, civil marriages, and antenuptial contracts. It confirms that matrimonial property consequences cannot be changed by private agreement once a marriage exists, without the involvement of the courts.

Couples married under customary law should seek legal advice before entering into further marital agreements or civil marriages, particularly where property and divorce implications are concerned.

Need Advice on Customary Marriage, Divorce, or Property Division?

If you are married under customary law, planning a civil marriage, or facing divorce and are unsure how your matrimonial property regime affects you, it is important to obtain proper legal advice.

Rudolf Buys & Associates Attorneys has experience advising clients on customary marriages, antenuptial contracts, divorce proceedings, and the division of joint estates.

📞 Contact our Law Firm today to arrange a confidential consultation and ensure your rights are protected.