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ConCourt Clarifies Customary-to-Civil Marriages: Post‑Marriage Antenuptial Contracts Need Court Approval

The ruling confirms that changes to a marriage’s property system after a customary union must follow section 21’s judicial process.

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Overview

  • The Constitutional Court declined to confirm the Pretoria High Court’s declaration that Section 10(2) of the Recognition of Customary Marriages Act is unconstitutional.
  • In J.R.M v V.V.C, the court found the couple’s 2019 antenuptial contract invalid because it sought to alter the property regime without court authorization.
  • The majority held that a subsequent civil marriage subsumes the earlier customary marriage, resulting in a single continuous union governed by civil law.
  • The court affirmed that Section 10(2) does not permit spouses to change their matrimonial property regime by private agreement, requiring a section 21 application instead.
  • A three‑judge dissent emphasized contractual autonomy, while the majority’s approach will guide pending appeals, including the Black Coffee–Enhle Mbali dispute before the SCA.