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

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The relationship between customary law marriages and civil marriages has long occupied an uneasy space in South African family law. Despite constitutional recognition of customary law as an equal system of law, practical and doctrinal tensions persist—particularly when couples transition from a customary marriage to a civil marriage with each other. These tensions were brought into sharp focus in VVC v JRM and Others [2026] ZACC 2, where the Constitutional Court was asked to decide whether spouses married under customary law may later alter their matrimonial property regime by concluding a civil marriage accompanied by an antenuptial contract, without any form of judicial oversight.

At the heart of the dispute lay the interpretation of section 10(2) of the Recognition of Customary Marriages Act 120 of 1998, a provision that permits spouses in a customary marriage to enter into a civil marriage with each other. The High Court had declared the provision constitutionally invalid, reasoning that it allowed parties—often to the detriment of women—to sidestep court supervision when changing their matrimonial property regime. On appeal, however, the Constitutional Court rejected this approach. Instead, it adopted a constitutionally compliant interpretation that preserves the validity of the provision while reaffirming the foundational principle of judicial oversight.

The judgment is significant not only for its technical interpretation of legislation, but also for what it reveals about the Court’s broader commitment to substantive equality, legal coherence, and the protection of vulnerable spouses within plural marriage systems.

Factual and Legal Background

The matter arose from a customary marriage that was validly concluded in accordance with customary law. At the time of its conclusion, the marriage was automatically in community of property, as prescribed by the Recognition of Customary Marriages Act for monogamous customary marriages entered into after the Act’s commencement. Several years later, the same parties entered into a civil marriage with each other and, prior to that civil ceremony, executed an antenuptial contract that purported to exclude community of property and the accrual system.

When the marriage later broke down, a dispute arose regarding the applicable matrimonial property regime. One party contended that the antenuptial contract governed the marriage, while the other argued that the contract was invalid because it was concluded after the customary marriage and without court approval. This dispute eventually gave rise to a constitutional challenge against section 10(2) of the Recognition of Customary Marriages Act, on the basis that it permitted an impermissible alteration of proprietary consequences without adequate safeguards.

The High Court agreed with this argument and declared the provision unconstitutional. The matter was then referred to the Constitutional Court for confirmation.

The Central Legal Question

The Constitutional Court was required to determine whether section 10(2) of the Recognition of Customary Marriages Act allows spouses to terminate a customary marriage and replace it with a civil marriage governed by a new matrimonial property regime, without judicial oversight. Put differently, the Court had to decide whether the conclusion of a civil marriage between spouses already married under customary law creates a new marriage altogether, or whether it merely alters the legal form of an existing marital relationship.

This question was not merely academic. Its answer had far-reaching implications for proprietary rights, gender equality, and the coherence of South Africa’s family law framework. An interpretation that allowed parties to bypass court supervision would represent a significant departure from long-standing principles governing changes to matrimonial property regimes.

Continuity of Marriage: One Marriage, Not Two

Central to the majority judgment is the finding that a customary marriage is not terminated when the same parties later conclude a civil marriage with each other. Rather, there is a single, continuous marriage that persists throughout. The civil marriage does not dissolve the customary marriage; instead, it represents a change in the legal system under which the marriage is recognised.

This interpretation flows naturally from both constitutional principles and the text of the legislation. The Recognition of Customary Marriages Act was enacted to afford customary marriages full legal recognition and equal status. To interpret section 10(2) as allowing a customary marriage to be extinguished by a civil marriage would undermine this objective and relegate customary marriages to a subordinate position.

The Court emphasised that section 10 does not regulate divorce or dissolution. Its purpose is limited to regulating the change of marriage system, not the termination of the marital bond. By affirming continuity, the Court avoided creating a legal fiction whereby spouses could be said to divorce and remarry each other without complying with the procedural safeguards applicable to divorce.

The Nature of the Antenuptial Contract

Once the Court accepted that there is only one continuous marriage, the fate of the antenuptial contract followed almost inevitably. An antenuptial contract, by definition, is concluded before a marriage. Where parties are already married under customary law, any agreement they conclude thereafter cannot be antenuptial in nature.

The Court therefore held that the contract in question was, in law, a postnuptial agreement. This classification is critical because South African law has always treated postnuptial changes to matrimonial property regimes with caution. Such changes are only valid if authorised by a court in terms of section 21 of the Matrimonial Property Act 88 of 1984.

By attempting to label a post-marriage agreement as an antenuptial contract, the parties effectively sought to bypass this requirement. The Court was clear that this could not be permitted. To allow spouses to unilaterally alter their matrimonial property regime without court approval would erode a cornerstone of matrimonial property law.

Judicial Oversight as a Constitutional Safeguard

A recurring theme in the judgment is the importance of judicial oversight. The requirement of court authorisation for changes to matrimonial property regimes serves several vital functions. It ensures transparency, protects third-party interests, and, crucially, guards against exploitation within intimate relationships.

The Court noted that power imbalances often exist within marriages, particularly along gendered and economic lines. Women in customary marriages are frequently economically vulnerable, and an unchecked ability to alter proprietary consequences could expose them to arbitrary deprivation of property. Judicial oversight acts as a protective mechanism, ensuring that any proposed change is fair, informed, and not prejudicial.

Any interpretation of section 10(2) of the Recognition of Customary Marriages Act that undermines this safeguard would be inconsistent with constitutional values, particularly the rights to equality and dignity.

Rejection of the High Court’s Approach

While the Constitutional Court acknowledged the legitimate concerns raised by the High Court, it ultimately rejected the declaration of constitutional invalidity. The majority held that invalidation was neither necessary nor appropriate, given that the provision is reasonably capable of a constitutionally compliant interpretation.

This approach reflects the Court’s established preference for reading legislation in a manner that preserves its validity, where possible. By interpreting section 10(2) as regulating only the change in marriage system—and not the dissolution of marriage or the alteration of proprietary consequences without oversight—the Court resolved the constitutional concerns without striking down the provision.

This outcome also avoided creating uncertainty for the many couples who have relied on section 10(2) since its enactment.

Equality Between Marriage Systems

The judgment makes an important contribution to the constitutional project of achieving equality between customary and civil marriages. By affirming that customary marriages are not automatically displaced by civil marriages, the Court reinforced their equal legal status.

Historically, customary marriages were treated as inferior or informal, particularly in matters relating to property. This decision signals a decisive break from that past. It confirms that customary marriages enjoy the same continuity, dignity, and legal protection as civil marriages.

In this sense, the interpretation of section 10(2) of the Recognition of Customary Marriages Act aligns with broader constitutional jurisprudence that seeks to harmonise legal pluralism with substantive equality.

Practical Implications for Legal Practitioners

For legal practitioners, the judgment provides much-needed clarity. It confirms that:

• A customary marriage remains in existence even after the parties conclude a civil marriage with each other.
• Any agreement concluded after the customary marriage that alters the matrimonial property regime is a postnuptial agreement.
• Such an agreement is invalid unless approved by a court under section 21 of the Matrimonial Property Act.

Practitioners advising clients who wish to change their matrimonial property regime must therefore ensure that the correct procedure is followed. Failure to obtain court authorisation will render the agreement ineffective, regardless of how it is labelled.

Implications for Spouses in Customary Marriages

For spouses themselves, the judgment offers both protection and certainty. It prevents one spouse from unilaterally altering proprietary consequences through a later civil marriage. At the same time, it preserves spouses’ ability to change their matrimonial property regime—provided they do so transparently and with judicial approval.

This strikes a careful balance between autonomy and protection. Couples retain the freedom to structure their financial affairs, but not at the expense of fairness or constitutional values.

Broader Constitutional Significance

Beyond its immediate context, the decision in VVC v JRM and Others underscores the Constitutional Court’s role as a guardian of substantive equality within South Africa’s plural legal system. It demonstrates a nuanced understanding of how formal legal rules interact with lived realities, particularly for women in customary marriages.

The judgment also reinforces the principle that legal reform must proceed through careful interpretation rather than blunt invalidation, especially in areas as sensitive as family law.

Conclusion

The Constitutional Court’s interpretation of section 10(2) of the Recognition of Customary Marriages Act represents a decisive affirmation of continuity, equality, and judicial oversight. By holding that a customary marriage is not terminated by a subsequent civil marriage between the same parties, the Court preserved the integrity of customary marriages. It protected economically vulnerable spouses from arbitrary deprivation of property.

At the same time, the judgment clarifies the legal position for practitioners and spouses alike, ensuring coherence between the Recognition of Customary Marriages Act and the Matrimonial Property Act. In doing so, it advances the constitutional promise of equal recognition and protection for all marriage systems in South Africa.