The Conundrum: Validity of an ‘Antenuptial Contract’ Concluded Post-Customary Marriage
In the recent case of JRM v VVC and Another (25007/2022), the Gauteng Division of the High Court, Pretoria, grappled with a perplexing legal question: What is the status of an agreement signed by parties to an existing customary marriage in community of property that seeks to regulate the proprietary consequences of their subsequent civil marriage out of community of property?
The facts of the case are as follows: The plaintiff (JRM) and the first defendant (VVC) entered into a customary marriage on 5 August 2011 without concluding an antenuptial contract, thereby automatically rendering their marital regime one of community of property, as per section 7(2) of the Recognition of Customary Marriages Act 120 of 1998 (hereafter Recognition Act). However, on 19 February 2019, the parties signed a purported ‘antenuptial contract’ stipulating that their impending civil marriage would be out of community of property, subject to the accrual system. The parties eventually entered into a civil marriage on 10 June 2021.
The central issue before the court was whether the ‘antenuptial contract’ entered into after the conclusion of the customary marriage but before the civil marriage was valid. The plaintiff argued that the agreement was indeed valid, while the first defendant contested its validity.
To address this issue, Acting Judge Marumoagae delved into the complex legal landscape surrounding customary marriages and their proprietary consequences. The court referred to several landmark cases, such as Gumede (born Shange) v President of the Republic of South Africa and Others 2009 (3) BCLR 243 (CC) and Ramuhovhi and Others v President of the Republic of South Africa and Others 2018 (2) BCLR 217 (CC), which emphasised the importance of promoting equality and protecting the rights of vulnerable parties in customary marriages.
The court also examined section 7(2) of the Recognition Act, which establishes community of property as the default matrimonial property regime for monogamous customary marriages, unless explicitly excluded by an antenuptial contract. Furthermore, the court considered section 21 of the Matrimonial Property Act 88 of 1984, which requires judicial oversight when spouses seek to change their matrimonial property regime.
In analysing the purported ‘antenuptial contract’ signed by JRM and VVC, the court found that the agreement sought to regulate assets that were already part of the joint estate created by their customary marriage. This, the court reasoned, could not be considered a genuine antenuptial contract, as it would effectively allow one spouse to unilaterally deal with joint assets to the detriment of the other spouse.
Acting Judge Marumoagae emphasised that while parties to a customary marriage are free to enter into a subsequent civil marriage, any agreement that seeks to change their matrimonial property regime must be subject to judicial oversight, as mandated by section 21 of the Matrimonial Property Act. Failure to obtain court approval renders such agreements invalid.
The JRM v VVC case highlights the complex interplay between customary and civil marriages in South Africa, and the need for legal clarity on the status of agreements that purport to regulate the proprietary consequences of subsequent civil marriages. The judgment serves as a reminder that courts must remain vigilant in protecting the rights and interests of financially weaker spouses, particularly women, in customary marriages.
Section 10(2) of the Recognition of Customary Marriages Act: A Call for Constitutional Scrutiny
In the JRM v VVC case, the first defendant launched a constitutional challenge against section 10(2) of the Recognition Act, arguing that it unfairly discriminates against financially weaker spouses, particularly women, in monogamous customary marriages.
Section 10(2) of the Recognition Act provides that when parties to an existing customary marriage conclude a civil marriage, their matrimonial property regime will be in community of property unless excluded by an antenuptial contract. The first defendant contended that this provision allows for the conclusion of contracts that materially alter the patrimonial position of both spouses without judicial oversight, thereby disregarding the joint estate created by the customary marriage and potentially infringing upon the property rights of the financially weaker spouse.
The court accepted the first defendant’s argument that section 10(2) effectively denies spouses in customary marriages the protection afforded by section 21 of the Matrimonial Property Act, which requires judicial intervention when spouses in civil marriages seek to change their matrimonial property regime. This differentiation, the court found, amounts to discrimination based on gender and, to some extent, race, as customary marriages are predominantly entered into by black South Africans.
Acting Judge Marumoagae emphasised the historical and ongoing marginalization of women, particularly black women, in South African society, as recognised by the Constitutional Court in EB (born S) v ER (born B) and others and a related matter 2024 (1) BCLR 16 (CC). The court held that the differentiation perpetuated by section 10(2) does not bear any rational connection to a legitimate governmental purpose and, thus, amounts to unfair discrimination.
The court further held that section 10(2) could not be justified under section 36 of the Constitution, as it was not clear how denying legislative protection to financially weaker spouses in customary marriages when their matrimonial property regime is changed without judicial oversight could be considered reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom.
Consequently, the court declared section 10(2) of the Recognition Act unconstitutional and invalid to the extent that it permits the conclusion of contracts that change matrimonial property regimes without judicial oversight, to the detriment of financially weaker spouses. The declaration of invalidity was suspended for 12 months to allow Parliament to rectify the defect.
The JRM v VVC case serves as a clarion call for greater constitutional scrutiny of legislative provisions that have the potential to perpetuate gender and racial inequalities in the context of customary marriages. The judgment underscores the importance of judicial oversight in safeguarding the rights and interests of vulnerable parties, particularly women, when significant changes to matrimonial property regimes are contemplated.
Judicial Oversight: The Missing Link in Matrimonial Property Regime Changes
The JRM v VVC case underscores the crucial role of judicial oversight in protecting the rights and interests of financially weaker spouses when changes to matrimonial property regimes are sought. The court emphasised that section 21 of the Matrimonial Property Act, which mandates judicial intervention when spouses in civil marriages seek to alter their matrimonial property system, should also apply to spouses in customary marriages who wish to change their regime from in community of property to out of community of property.
Acting Judge Marumoagae stressed that the absence of judicial oversight in the context of customary marriages leaves financially weaker spouses, usually women, vulnerable to potential exploitation and prejudice. By requiring court approval for changes to matrimonial property regimes, the law ensures that the rights and interests of both spouses are adequately protected and that any proposed changes are scrutinised for fairness and reasonableness.
The court also highlighted the importance of judicial oversight in safeguarding the rights of creditors, who may be adversely affected by changes to matrimonial property regimes. Section 21 of the Matrimonial Property Act requires that sufficient notice be given to all creditors before any changes are effected, allowing them to object or take necessary measures to protect their interests.
In the JRM v VVC case, the court found that the purported ‘antenuptial contract’ entered into by the parties after their customary marriage not only sought to regulate assets that were already part of their joint estate but also aimed to deprive the first defendant of her ownership rights in the immovable property and other assets without judicial scrutiny. This, the court held, amounted to an arbitrary deprivation of property, which is prohibited under section 25(1) of the Constitution.
The judgment in JRM v VVC serves as a reminder that judicial oversight is an indispensable safeguard in ensuring that changes to matrimonial property regimes are fair, reasonable, and constitutionally compliant. It also highlights the need for legislative reform to address the lacuna in the Recognition Act, which currently fails to provide adequate protection to financially weaker spouses in customary marriages when such changes are contemplated.
The court’s emphasis on the importance of judicial oversight in the context of matrimonial property regime changes is a welcome development, as it seeks to promote greater equality and protect the rights of vulnerable parties in customary marriages. It is hoped that this judgment will pave the way for legislative amendments that will ensure that all spouses, regardless of the type of marriage they have entered into, are afforded equal protection under the law when changes to their matrimonial property regimes are sought.
Unfair Discrimination and Arbitrary Deprivation: The Plight of Financially Weaker Spouses
The JRM v VVC case brought to the fore the plight of financially weaker spouses, particularly women, in customary marriages who face unfair discrimination and arbitrary deprivation of property when changes to matrimonial property regimes are effected without judicial oversight.
Acting Judge Marumoagae, applying the test for unfair discrimination laid down in Harksen v Lane NO and Others 1997 (11) BCLR 1489 (CC), found that section 10(2) of the Recognition Act discriminates against spouses in customary marriages by denying them the protection afforded by section 21 of the Matrimonial Property Act. This discrimination, the court held, is based on gender and race, as customary marriages are predominantly entered into by black South Africans, and women are more likely to be the financially weaker spouses in these marriages.
The court emphasised that the discrimination perpetuated by section 10(2) is unfair, as it has a disproportionately adverse impact on black women, who have historically been marginalised and continue to face significant economic disadvantages in South African society. The failure to provide judicial oversight when changes to matrimonial property regimes are sought in the context of customary marriages leaves these women vulnerable to exploitation and prejudice.
Moreover, the court found that the purported ‘antenuptial contract’ entered into by the parties in the JRM v VVC case amounted to an arbitrary deprivation of the first defendant’s property rights. By seeking to regulate assets that were already part of the joint estate created by the customary marriage and effectively excluding the first defendant’s ownership rights in the immovable property and other assets, the contract ran afoul of section 25(1) of the Constitution, which prohibits arbitrary deprivation of property.
The judgment in JRM v VVC highlights the intersectional nature of the discrimination and disadvantage faced by financially weaker spouses, particularly black women, in customary marriages. It underscores the need for robust legal protections and judicial oversight to ensure that the rights and interests of these vulnerable parties are safeguarded when changes to matrimonial property regimes are contemplated.
The court’s finding of unfair discrimination and arbitrary deprivation of property in the context of section 10(2) of the Recognition Act is a significant step towards addressing the systemic inequalities and prejudices that have long plagued customary marriages in South Africa. It is a clarion call for legislative reform and greater judicial vigilance in protecting the rights of financially weaker spouses and promoting substantive equality in all forms of marriage.
Balancing the Scales: The High Court’s Remedy and the Way Forward
In light of the constitutional infirmities identified in section 10(2) of the Recognition Act, the court in JRM v VVC was tasked with crafting an appropriate remedy to address the unfair discrimination and arbitrary deprivation of property faced by financially weaker spouses in customary marriages.
Acting Judge Marumoagae, recognising the need to balance the separation of powers with the imperative of protecting vulnerable parties, opted for a remedial approach that combines judicial deference with legislative action. The court declared section 10(2) of the Recognition Act unconstitutional and invalid to the extent that it permits the conclusion of contracts that change matrimonial property regimes without judicial oversight, to the detriment of financially weaker spouses.
However, the court suspended the declaration of invalidity for 12 months, allowing Parliament an opportunity to rectify the defect in the legislation. This approach reflects the judiciary’s respect for the role of the legislature in crafting laws and policies while ensuring that the rights of vulnerable parties are not left unprotected in the interim.
The court also provided guidance on the potential legislative amendments that could address the constitutional deficiencies in section 10(2). Acting Judge Marumoagae suggested that the words “existing” and “customary” be inserted into the provision, clarifying that any antenuptial contract seeking to change the matrimonial property regime of a customary marriage must be subject to judicial oversight, as contemplated by section 21 of the Matrimonial Property Act.
This proposed amendment strikes a balance between respecting the autonomy of spouses to regulate their matrimonial property regime and ensuring that the rights and interests of financially weaker spouses are adequately protected. By requiring judicial oversight for changes to the property regime of an existing customary marriage, the amendment would prevent the unilateral and potentially prejudicial alteration of the joint estate by one spouse to the detriment of the other.
The JRM v VVC case marks a significant step forward in the ongoing struggle for gender and racial equality in South African family law. The judgment serves as a powerful reminder that the pursuit of substantive equality requires not only legislative reform but also robust judicial intervention to protect the rights of vulnerable parties and address systemic inequalities.
As Parliament takes up the task of amending section 10(2) of the Recognition Act, it is hoped that the legislature will heed the court’s call for greater protection of financially weaker spouses in customary marriages. The way forward lies in crafting legislative solutions that promote equality, fairness, and the dignity of all parties in matrimonial property regimes, while ensuring that the rights and interests of the most vulnerable are not sacrificed on the altar of formal equality.
Case Law Mentioned in the Judgement
EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others, 2024 (1) BCLR 16 (CC); 2024 (2) SA 1 (CC): This case was cited in the judgment to highlight the notion that women typically enter into marriage poorer and more dependent than men, and therefore have less bargaining power (para 1). This case emphasises the vulnerability of women in marriages and the need for their protection.
Nkambula v Linda [1951] 1 All SA 412 (A): This case was mentioned in the judgment (footnote 36) to illustrate the historical context where customary unions were not regarded as legal marriages, and thus, partners to such unions could enter into civil marriages with third parties.
Sithole and Another v Sithole and Another, 2021 (6) BCLR 597 (CC); 2021 (5) SA 34 (CC): The judgment cited this case (para 65) to show that the Constitutional Court declared section 21(2)(a) of the Matrimonial Property Act unconstitutional and invalid because it perpetuated the discrimination created by the repealed section 22(6) of the Black Administration Act.
Mzalisi NO and Others v E O and Another, 2020 (3) SA 83 (SCA): This case was cited in the judgment (para 52) to emphasise that headings in a statute may be resorted to only where the meaning of a provision under consideration is doubtful, and that the provisions of section 10 of the Recognition of Customary Marriages Act are unambiguous and clear.
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs & Others, 2004 (4) SA 490 (CC): The judgment referred to this case (footnote 19) to highlight that the emerging trend in statutory construction is to have regard to the context in which the words occur, even where the words to be construed are clear and unambiguous.
National Director of Public Prosecutions and Another v Mohamed NO and Others, 2002 (9) BCLR 970 (CC): This case was cited in the judgment (para 119) to confirm that a High Court has the same competence as the Constitutional Court to “read in” as a remedy for the constitutional invalidity of a statutory provision, subject to confirmation by the Constitutional Court.
First National Bank of SA Limited t/a Wesbank v Commissioner for the South African Revenue Services and Another; First National Bank of SA Limited t/a Wesbank v Minister of Finance, 2002 (7) BCLR 702 (CC): The judgment referred to this case (para 115) to explain that a deprivation of property is “arbitrary” as meant by section 25 of the Constitution when the law referred to in section 25(1) does not provide sufficient reason for the particular deprivation in question or is procedurally unfair.
These additional cases, along with their relevance, provide a more comprehensive understanding of the legal principles and historical context that informed the court’s decision in JRM v VVC. They highlight the importance of protecting vulnerable parties, particularly women, in customary marriages and the need for legislative reform and judicial intervention to address systemic inequalities and promote substantive equality in South African family law.
The JRM v VVC case has laid the groundwork for a more equitable and just approach to matrimonial property regimes in customary marriages. It is now up to Parliament, the judiciary, and society as a whole to build upon this foundation and work towards a future where all spouses, regardless of gender, race, or the type of marriage they have entered into, are afforded equal protection and respect under the law.
Questions and Answers
What was the central issue in the JRM v VVC and Another case?
The central issue in JRM v VVC and Another (25007/2022) was whether a purported ‘antenuptial contract’ entered into by the parties after concluding a customary marriage but before entering into a civil marriage was valid and enforceable.
What is the default matrimonial property regime for customary marriages under the Recognition of Customary Marriages Act?
Section 7(2) of the Recognition of Customary Marriages Act 120 of 1998 provides that the default matrimonial property regime for monogamous customary marriages is in community of property, unless specifically excluded by the spouses in an antenuptial contract.
What did the court find regarding the validity of the ‘antenuptial contract’ in the JRM v VVC case?
The court found that the purported ‘antenuptial contract’ entered into by the parties after their customary marriage was invalid, as it sought to regulate assets that were already part of the joint estate created by the customary marriage without judicial oversight.
What is the significance of section 21 of the Matrimonial Property Act in the context of changing matrimonial property regimes?
Section 21 of the Matrimonial Property Act 88 of 1984 requires judicial oversight when spouses in civil marriages seek to change their matrimonial property regime. The court in JRM v VVC emphasised that this provision should also apply to spouses in customary marriages who wish to change their regime from in community of property to out of community of property.
How did the court interpret section 10(2) of the Recognition of Customary Marriages Act in light of the Constitution?
The court found that section 10(2) of the Recognition of Customary Marriages Act unfairly discriminates against financially weaker spouses, particularly women, in monogamous customary marriages by permitting the conclusion of contracts that materially alter the patrimonial position of both spouses without judicial oversight.
What was the basis for the court’s finding of unfair discrimination in the JRM v VVC case?
The court held that the differentiation perpetuated by section 10(2) of the Recognition of Customary Marriages Act amounts to unfair discrimination based on gender and, to some extent, race, as customary marriages are predominantly entered into by black South Africans, and women are more likely to be the financially weaker spouses in these marriages.
How did the court apply the test for unfair discrimination from the Harksen v Lane NO and Others case?
Applying the test for unfair discrimination laid down in Harksen v Lane NO and Others 1997 (11) BCLR 1489 (CC), the court found that section 10(2) of the Recognition of Customary Marriages Act discriminates against spouses in customary marriages by denying them the protection afforded by section 21 of the Matrimonial Property Act, and that this discrimination is unfair as it disproportionately impacts black women.
What did the court find regarding the arbitrary deprivation of property in the JRM v VVC case?
The court found that the purported ‘antenuptial contract’ entered into by the parties amounted to an arbitrary deprivation of the first defendant’s property rights, as it sought to regulate assets that were already part of the joint estate created by the customary marriage and effectively excluded the first defendant’s ownership rights in the immovable property and other assets without judicial scrutiny.
How did the court address the unconstitutionality of section 10(2) of the Recognition of Customary Marriages Act?
The court declared section 10(2) of the Recognition of Customary Marriages Act unconstitutional and invalid to the extent that it permits the conclusion of contracts that change matrimonial property regimes without judicial oversight, to the detriment of financially weaker spouses.
What remedy did the court provide in the JRM v VVC case?
The court suspended the declaration of invalidity of section 10(2) for 12 months, allowing Parliament an opportunity to rectify the defect in the legislation. The court also provided guidance on potential legislative amendments, suggesting that the words “existing” and “customary” be inserted into the provision to clarify that any antenuptial contract seeking to change the matrimonial property regime of a customary marriage must be subject to judicial oversight.
What is the significance of the JRM v VVC case for the protection of financially weaker spouses in customary marriages?
The JRM v VVC case highlights the importance of judicial oversight in protecting the rights and interests of financially weaker spouses, particularly women, in customary marriages when changes to matrimonial property regimes are sought. The judgment underscores the need for legislative reform to address the lacuna in the Recognition of Customary Marriages Act and ensure adequate protection for vulnerable parties.
How does the JRM v VVC case contribute to the advancement of gender and racial equality in South African family law?
The JRM v VVC case marks a significant step forward in the ongoing struggle for gender and racial equality in South African family law. The judgment serves as a powerful reminder that the pursuit of substantive equality requires both legislative reform and robust judicial intervention to protect the rights of vulnerable parties and address systemic inequalities in customary marriages.
What role does judicial oversight play in ensuring fairness and constitutionality when changes to matrimonial property regimes are sought?
Judicial oversight is crucial in ensuring that changes to matrimonial property regimes are fair, reasonable, and constitutionally compliant. By requiring court approval for such changes, the law ensures that the rights and interests of both spouses are adequately protected and that any proposed changes are scrutinised for potential prejudice or unfairness.
What are the potential implications of the JRM v VVC case for the broader context of matrimonial property regimes in South Africa?
The JRM v VVC case has laid the groundwork for a more equitable and just approach to matrimonial property regimes in customary marriages. The judgment calls for legislative solutions that promote equality, fairness, and the dignity of all parties, while ensuring that the rights and interests of the most vulnerable are protected. The case may also have implications for the broader context of matrimonial property regimes in South Africa, highlighting the need for consistent and robust judicial oversight in all forms of marriage.
What is the way forward following the JRM v VVC judgment?
The way forward lies in Parliament taking up the task of amending section 10(2) of the Recognition of Customary Marriages Act to address the constitutional deficiencies identified by the court. The judiciary, legislature, and society as a whole must work together to build upon the foundation laid by the JRM v VVC case and strive towards a future where all spouses, regardless of gender, race, or the type of marriage they have entered into, are afforded equal protection and respect under the law.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.
DOWNLOAD THE JUDGEMENT HERE: