The Constitutional Court has delivered a landmark judgment that directly affects the property rights of couples who first married under customary law and later concluded a civil marriage.
The majority decision, delivered on 21 January, resolves uncertainty about what happens to the matrimonial property regime – particularly the joint estate created under community of property – when spouses add a civil ceremony years after their customary wedding.
The issue before the Court was whether such couples can sign an antenuptial contract (ANC) in the period between the two ceremonies to switch from in community of property to out of community of property (with or without accrual), or whether the original joint estate continues unless changed through a formal, court-supervised process.
Six of the Court’s nine judges ruled:
- the marriage is continuous,
- the joint estate persists unless altered under strict statutory safeguards, and
- an ANC signed after the customary marriage but before the civil one is invalid unless it complies with the judicial oversight requirements of section 21 of the Matrimonial Property Act (MPA).
Background to the case
The applicant (the wife) and the first respondent (the husband) concluded a customary marriage in August 2011.
Under section 7(2) of the Recognition of Customary Marriages Act (RCMA), monogamous customary marriages entered after the Act’s commencement are automatically in community of property – all assets and liabilities form a single joint estate owned in equal undivided shares – unless the spouses excluded that regime by an ANC before the customary marriage.
In February 2019, the parties signed an ANC stating that their intended civil marriage would be out of community of property with accrual. They solemnised the civil marriage in June 2021 without dividing the existing joint estate or obtaining court approval for any change.
Divorce proceedings commenced in 2022. The husband sought enforcement of the ANC. The wife contended:
- The 2019 ANC was invalid, having been concluded after an existing marriage and purporting to change the matrimonial property regime without compliance with section 21 of the MPA.
- Alternatively, if valid, section 10(2) of the RCMA was unconstitutional because it appeared to permit unsupervised changes to the matrimonial property system, risking arbitrary deprivation of property (section 25(1) of the Constitution) and unfair discrimination against economically weaker spouses, predominantly women in customary marriages (section 9).
The High Court in Pretoria ruled the ANC invalid as an unapproved postnuptial contract. It then declared section 10(2) unconstitutional, suspended the order for 12 months, and ordered a reading-in remedy if Parliament failed to act. The declaration required mandatory confirmation by the Constitutional Court under section 172(2) of the Constitution.
Constitutionally valid
The majority judgment, written by Justice Steven Majiedt, declined to confirm the High Court’s declaration of constitutional invalidity.
The majority held that the constitutional concerns identified by the High Court fell away once section 10(2) of the RCMA was properly interpreted and the ANC found invalid on ordinary statutory grounds. No order as to costs was made.
Single, continuous marriage relationship
The majority’s reasoning was anchored in the transformative purpose of the RCMA: to redress the historical marginalisation of customary marriages, affirm their equal status with civil marriages, and protect vulnerable spouses – particularly black women – through the default application of community of property and safeguards against exploitative changes to property regimes.
The key findings were:
- When the same spouses later conclude a civil marriage under section 10(1) of the RCMA, the customary marriage is not dissolved.
- The civil marriage subsumes the customary marriage: there is one continuous marriage that began under customary law and later becomes governed by civil-law rules.
- The civil ceremony is declaratory rather than constitutive – it confirms an existing marital relationship under a different legal framework rather than creating a new marriage.
- A customary marriage can be terminated only by death or a decree of divorce in terms of section 8 of the RCMA.
Interpreting the civil marriage as terminating the customary one would revive historical hierarchies that treated customary marriages as inferior and would undermine the equality-restoring purpose of the RCMA.
Purposive interpretation of section 10(2)
Section 10(2) of the RCMA provides, in essence, that when spouses to a customary marriage conclude a civil marriage with each other, the marriage is in community of property unless those consequences are excluded by an ANC regulating the matrimonial property system of their marriage.
The majority accepted that the provision contains linguistic ambiguity, particularly in the closing words “of their marriage”. Resolving that ambiguity contextually and purposively, the Court held:
- The opening reference to “the marriage” can sensibly refer only to the later civil marriage.
- However, the concluding phrase “of their marriage” must refer to the pre-existing customary marriage, because an antenuptial contract – by its nature and under sections 86 and 87 of the Deeds Registries Act – must be concluded before the marriage it regulates.
- Because there is only one continuous marriage commencing with the customary ceremony, a valid ANC can be executed only before the customary marriage.
- Any agreement concluded thereafter is necessarily a postnuptial attempt to alter the matrimonial property regime.
Section 7(5) of the RCMA expressly applies section 21 of the MPA to post-Act monogamous customary marriages. That provision sets out a detailed, court-supervised process for changing matrimonial property systems, including a joint application, notice to creditors, and judicial satisfaction that no party will be prejudiced. These safeguards protect both economically weaker spouses and third parties.
To read section 10(2) as authorising a post-customary, pre-civil ANC would create an unsupervised shortcut around section 21 of the MPA – a result the majority described as leading to an “unconstitutional state of affairs”.
A holistic and constitution-compliant interpretation therefore confirms that section 10(2) does not create an alternative mechanism for changing matrimonial property regimes. Properly construed, it merely confirms that a civil marriage concluded after a customary marriage defaults to community of property unless a valid, pre-existing ANC (concluded before the customary marriage) already regulates the matrimonial property system.
The 2019 ANC was invalid
Because the marriage was continuous, the February 2019 ANC was concluded nearly eight years after the marriage had already come into existence. It amounted to an attempted postnuptial change of the matrimonial property regime without compliance with section 21 of the MPA and was therefore invalid.
The parties accordingly remained married in community of property, and the conditional constitutional challenge did not arise.
Minority decision
The minority judgment, written by Justice Owen Rogers, agreed that section 10(2) of the RCMA is constitutional but differed on how it should be interpreted. The minority considered that the provision was intended to allow spouses to regulate the consequences of their later civil marriage through an ANC, without necessarily requiring court intervention.
Practical consequences
The majority judgment reinforces three interlocking principles:
- Customary marriages enjoy full and equal dignity under South African law.
- The default regime of community of property serves an important protective function for economically weaker spouses.
- Any mid-marriage alteration of the matrimonial property system – including when spouses add a civil ceremony – requires judicial oversight under section 21 of the MPA.
Couples who have signed an ANC after a customary marriage but before a civil marriage now face real legal risk. Such agreements are likely to be invalid, leaving the marriage in community of property despite contrary intentions.
