The Constitutional Court judgment refused to confirm a high court ruling that had declared a key provision of the Recognition of Customary Marriages Act unconstitutional, finding instead that the act does not allow spouses to change their matrimonial property regime without judicial oversight.
The case arose from a divorce dispute between a couple identified as VVC and JRM. The pair first married under customary law on 5 August 2011, which meant their marriage defaulted to an “in community of property” regime; a legal position that generally treats most assets and liabilities acquired during the marriage as jointly shared.
Eight years later, the couple decided to enter into a civil marriage. Before that civil ceremony, they signed an antenuptial contract (ANC) stating that the civil marriage would be out of community of property and subject to the accrual system.
Under an out of community of property arrangement, each spouse typically keeps a separate estate, while the accrual system can allow for a sharing of growth in estates during the marriage, depending on how it is structured.
TimesLIVE reported that the couple concluded the civil marriage in June 2021 without first dividing the joint estate created by the customary marriage.
In 2022, the husband filed for divorce and sought enforcement of the ANC. The wife opposed this, arguing the ANC was invalid.
In the alternative, she argued that if the ANC was valid, then section 10(2) of the Recognition of Customary Marriages Act was unconstitutional.
The constitutional challenge centred on whether section 10(2) could be read as allowing spouses married under customary law to change their matrimonial property regime from in community of property to out of community of property through a written agreement, without judicial oversight.
The section in question states a marriage is in community of property unless those consequences are specifically excluded in an antenuptial contract regulating the matrimonial property system.
However, the high court found that the agreement between the parties functioned as a postnuptial contract; an attempt to alter the marital property system after a marriage already existed; and that it was invalid because it changed the matrimonial property regime without the judicial oversight required by section 21 of the Matrimonial Property Act.
While the high court also declared section 10(2) unconstitutional, the Constitutional Court did not confirm that declaration, finding that once the ANC was held invalid for failure to follow section 21, it was unnecessary to decide the constitutional issue.
Legal expert Nthabiseng Dubazana of Dubazana Attorneys told TimesLIVE that customary marriages are “automatically in community of property”, describing it as a form of protection for spouses, while also carrying shared exposure to debt if one spouse is financially reckless.
She added that changing marital regimes requires a court process:
“So you have to do a section 21 application if you want to change your marital regime. So people must make sure their ANCs are properly registered and properly given as an order of court.”
