The Constitutional Court has ruled that married couples cannot use an antenuptial contract to change their existing matrimonial property regime once they are already married, whether under civil or customary law.
In a judgment delivered on Wednesday, the apex court made it clear that a spouse cannot enter into an antenuptial contract in an attempt to override an initial and existing marriage property system. It held that such contracts cannot be used to escape a marriage in community of property that is already in place.
The decision came as the court declined to uphold a ruling by the High Court in Pretoria, which had previously declared part of the Recognition of Customary Marriages Act unconstitutional. That high court judgment, which dealt with Section 10(2) of the act, was automatically referred to the Constitutional Court for confirmation.
Divorce dispute triggers constitutional challenge
The case arose from an opposed divorce between VVC and JRM, who married by customary law in 2011. That marriage was in community of property. A decade later, in 2021, they entered into a civil marriage.
Before registering their civil marriage, the couple signed an antenuptial contract (ANC). In that agreement, they recorded that the new civil marriage would be out of community of property with accrual.
When the relationship broke down in 2022, the husband attempted to rely on the ANC and sought to enforce it during the divorce proceedings. The wife challenged its validity, arguing that the contract unlawfully changed their matrimonial property regime without court approval.
VVC went to the High Court in Pretoria and successfully challenged Section 10(2) of the Recognition of Customary Marriages Act to the extent that it permits the conclusion of contracts that change matrimonial property regimes without judicial oversight. The high court agreed that the provision effectively allowed spouses to alter their property system “by private agreement alone”, something she argued placed economically vulnerable spouses – particularly black women married under customary law – at risk of unfair discrimination and arbitrary deprivation of property.
The Pretoria court declared Section 10(2) unconstitutional, finding that it exposed women in customary marriages to serious prejudice. It also suspended the declaration of invalidity for 12 months to give parliament time to fix the law.
Constitutional Court: civil marriage subsumes customary marriage
The Constitutional Court took a different view. It refused to confirm the High Court’s order striking down Section 10(2) and found instead that the lower court had misinterpreted the provision.
In a majority judgment written by Justice Rammaka Mathopo Majiedt, the court stressed that the Recognition of Customary Marriages Act was enacted to remedy historical inequality and to place customary marriages on the same footing as civil marriages.
“The act must be interpreted purposively, in a manner that advances constitutional values and protects spouses, particularly women,” the court said.
The court found that the High Court’s reading of Section 10(2) was incorrect. It held that a civil marriage subsumes a customary marriage, and does not dissolve it, and that there is nothing in that provision that envisages a change of a matrimonial property system simply by private contract.
“The conclusion of a civil marriage does not terminate the customary marriage,” the judgment states.
“It results in a change to the legal regime governing an existing marriage, not the creation of a new one.”
The court explained that customary marriages concluded after the act came into force are regulated by Section 21 of the Matrimonial Property Act, which states that any change to the matrimonial property system requires court approval.
“The law does not permit spouses to alter their matrimonial property regime without judicial oversight,” the court held.
On this basis, the Constitutional Court concluded that Section 10(2) does not authorise spouses already married under customary law to execute an antenuptial contract that changes their property system before entering a later civil marriage.
Antenuptial contract ruled invalid
Although VVC lost the constitutional challenge, the Constitutional Court still found that the antenuptial contract between the spouses is invalid.
The court held that the ANC had been concluded without following the statutory requirement of obtaining a court order under Section 21 of the Matrimonial Property Act. Because of that, it could not lawfully alter the couple’s original in-community-of-property regime.
The judgment makes it clear that the impugned provision does not permit the execution of an “antenuptial” contract in an existing customary marriage prior to a later civil marriage. Any attempt to change the property consequences of such a marriage must go through court.
As a result, while the wife did not succeed in having Section 10(2) struck down as unconstitutional, she did succeed in having the specific ANC in her case declared invalid.
Dissenting view: contractual autonomy vs protection
Not all the judges agreed with the majority’s approach.
In a dissenting judgment by Justice Rogers, with Judges Madlanga and Opperman concurring, the minority argued that Section 10(2) does permit spouses to regulate their property consequences through an antenuptial contract concluded before the civil marriage.
They contended that this interpretation better respects contractual autonomy of spouses who wish to choose their own property system.
Justice Rogers said the majority’s interpretation “sets at naught the spouses’ expressed wishes” and forces couples to bear the cost and burden of court applications even where they agree on the property regime they want.
However, even the minority agreed that the High Court’s declaration of constitutional invalidity should not stand, meaning there was no confirmation that Section 10(2) is unconstitutional.
Clear message: no private changes without court approval
In the end, the Constitutional Court’s ruling brings clear guidance:
- Couples married under customary law who then enter into a civil marriage cannot privately use an antenuptial contract to change their property regime.
- Any such change must comply with Section 21 of the Matrimonial Property Act, requiring court oversight.
- A civil marriage does not wipe out an existing customary marriage, but subsumes it into a single ongoing union governed by civil law.
The court underlined that these safeguards are aimed at protecting vulnerable spouses, especially women, from exploitation or being stripped of property rights during the move from customary to civil marriage.
The Constitutional Court made no order as to costs.
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