Factual Matrix: From Customary Union to Civil Marriage and the Antenuptial Contract Conundrum
The applicant, VVC, and the first respondent, JRM, entered into a customary marriage on 5 August 2011. As no antenuptial contract preceded this union, the marriage was by operation of law in community of property in accordance with the default regime established under the Recognition of Customary Marriages Act 120 of 1998 (the Recognition Act). The spouses remained married under this proprietary regime for approximately eight years.
On 19 February 2019, the parties executed what they believed to be a valid antenuptial contract. This notarial agreement stipulated that any subsequent civil marriage between them would be out of community of property and subject to the accrual system as contemplated in Chapter I of the Matrimonial Property Act 88 of 1984 (the MPA). The significance of this agreement lay in its timing: it was concluded after the customary marriage had already been solemnized and a joint estate had been created, but before any civil marriage had been entered into.
More than two years after executing the antenuptial contract, on 10 June 2021, VVC and JRM formalised their relationship further by concluding a civil marriage under the Marriage Act 25 of 1961. Critically, at no point did the parties divide or liquidate the joint estate that had accrued during their customary marriage. Assets and liabilities accumulated over the preceding decade remained undivided.
The matrimonial relationship deteriorated, and in May 2022 JRM instituted divorce proceedings in the High Court. He sought not only a decree of divorce but also enforcement of the antenuptial contract executed in February 2019. His case rested on the premise that the parties’ marriage was out of community of property by virtue of the antenuptial contract, and that the accrual system governed the division of assets accumulated after the civil marriage.
VVC mounted a two-pronged defence. Her primary contention was that the purported antenuptial contract was invalid and unenforceable. She argued that at the time of its execution, the parties were already married in community of property under their customary marriage. Consequently, what JRM characterized as an antenuptial contract was in substance a postnuptial contract, which under South African law requires judicial oversight and cannot be validly concluded by mere agreement between spouses.
In the alternative, VVC raised a constitutional challenge. She contended that if the antenuptial contract were found to be valid, then section 10(2) of the Recognition Act itself was unconstitutional. The impugned provision, she argued, violated section 25(1) and section 9(1) and (3) of the Constitution of the Republic of South Africa, 1996 (the Constitution). Her complaint was that the provision permitted spouses in customary marriages to change their matrimonial property regime from in community of property to out of community of property without any judicial oversight whatsoever, thereby exposing financially weaker spouses to arbitrary deprivation of property and unfair discrimination.
The parties agreed to a stated case in terms of rule 33(1) of the Uniform Rules of Court, separating the constitutional question from the other issues in the divorce proceedings. The agreed issues included whether the antenuptial contract was valid and enforceable, and if so, whether section 10(2) was unconstitutional insofar as it allowed spouses to change their marital property regime without application to court or notice to creditors.
Before the High Court, JRM adopted an unusual stance. Although he was the plaintiff in the divorce action and had initiated the enforcement proceedings, he furnished no written submissions on the stated case and did not appear when the matter was argued. The applicant appeared and advanced her case that the contract was invalid, or alternatively, that the legislative provision enabling it was unconstitutional. The second and third respondents, the Ministers of Justice and Constitutional Development and of Home Affairs respectively, also did not participate in the High Court proceedings.
The applicant’s case resonated with concerns about the vulnerability of women in customary marriages, particularly those who may lack financial literacy or bargaining power. She contended that allowing a change in matrimonial property regime by mere written agreement, without the safeguards inherent in a court application under section 21 of the MPA, would result in assets that had formed part of the joint estate being recognised as the sole property of whichever spouse held formal title. The economically weaker spouse would lose her claim to a half-share of the joint estate without any independent scrutiny of whether the arrangement was fair or whether she properly understood its implications.
The factual scenario thus presented a paradigm case for judicial consideration of the intersection between customary and civil marriages, the protection of matrimonial property rights, and the extent to which spouses should be permitted to restructure their financial relationships without institutional oversight.
The Interpretative Divide: Competing Constructions of Section 10(2) of the Recognition of Customary Marriages Act
The Constitutional Court fractured into two camps, producing a majority judgment penned by Majiedt J and a dissenting judgment authored by Rogers J. At the heart of their disagreement lay fundamentally different interpretations of section 10(2) of the Recognition Act, a provision that on its face appears deceptively straightforward but conceals profound ambiguities.
The Recognition Act provides in section 10(1) that spouses in a subsisting customary marriage are competent to contract a civil marriage with each other, provided neither is party to another customary marriage. Section 10(2) then states: “When a marriage is concluded as contemplated in subsection (1) the marriage is in community of property and of profit and loss unless such consequences are specifically excluded in an antenuptial contract which regulates the matrimonial property system of their marriage.”
The interpretative controversy centered on the phrase “their marriage” in the latter part of the subsection. Does this refer to the customary marriage that already exists, or to the civil marriage about to be concluded? The answer to this seemingly technical question carries momentous practical consequences for thousands of South African families.
Majiedt J, writing for the majority, adopted what might be termed a continuity interpretation. He held that section 10 regulates a change in marriage system, not a change in matrimonial property regime. When spouses move from customary to civil law, they are not dissolving one marriage and creating another; rather, they are changing the legal framework governing a single, continuous marital relationship. The customary marriage is subsumed into, or replaced by, the civil marriage, but the marriage relationship itself persists unbroken.
On this construction, the phrase “their marriage” can only refer to the customary marriage, because that is the only marriage that existed when any antenuptial contract could properly have been executed. An antenuptial contract, by definition and by virtue of the prefix “ante” meaning “before,” must be concluded before the commencement of the marriage it regulates. Since the parties are already married under customary law when they contemplate a civil marriage, any notarial contract concluded at that stage would be postnuptial, not antenuptial.
The majority judgment emphasised the nomenclature itself as determinative. Section 86 of the Deeds Registries Act 47 of 1937 provides that an antenuptial contract not registered in accordance with section 87 shall be of no force or effect against third parties. Section 87 requires that an antenuptial contract must be attested by a notary and registered within three months of execution. Section 88 permits postnuptial execution of a notarial contract having the effect of an antenuptial contract, but only where the court authorises this and only where the terms were agreed between the intended spouses before the marriage.
Majiedt J found it inconceivable that parties could execute a valid antenuptial contract during the subsistence of an existing marriage. To interpret section 10(2) as permitting this would, in his view, amount to sanctioning a covert authorisation for postnuptial contracts without judicial supervision, thereby circumventing the safeguards in section 21 of the MPA. That section requires spouses wishing to change their matrimonial property system to make a joint application to court, satisfy the court that there are sound reasons for the change, give sufficient notice to all creditors, and demonstrate that no other person will be prejudiced.
The majority further reasoned that if the customary marriage was already in community of property, the subsequent civil marriage would also be in community of property unless an antenuptial contract had been concluded before the customary marriage. Conversely, if an antenuptial contract preceded the customary marriage, that same contract would continue to regulate the civil marriage. The proprietary consequences simply carry over; they are not reset or renegotiated at the point of conversion.
This interpretation finds support in the structure of the Recognition Act. Section 7(2) establishes that a customary marriage is in community of property “unless such consequences are specifically excluded by the spouses in an antenuptial contract which regulates the matrimonial property system of their marriage.” Section 7(5) makes section 21 of the MPA applicable to customary marriages, thereby providing a mechanism for changing the matrimonial property regime during the marriage under judicial supervision. If section 10(2) were intended to permit an extra-judicial change of regime, it would render section 7(5) and the elaborate protections of section 21 nugatory for couples undertaking a conversion.
Rogers J, writing for the minority, reached a diametrically opposite conclusion. His interpretation turned on a close textual reading of section 10(2) itself. The subsection begins by stating “When a marriage is concluded as contemplated in subsection (1)” – an unambiguous reference to the civil marriage. It continues, “the marriage is in community of property” – again, the definite article “the marriage” must refer to the marriage just mentioned, namely the civil marriage.
On this grammatical analysis, the natural and ordinary meaning of “their marriage” at the end of the subsection is also the civil marriage, because the provision deals with the proprietary consequences of a single identified marriage throughout. To read the final reference to “their marriage” as suddenly pivoting to mean the customary marriage would be linguistically jarring and contextually untenable.
Rogers J reinforced this reading by noting that section 10(3) refers to “any marriage which is in community of property as contemplated in subsection (2).” This language indicates that it is by operation of section 10(2), not section 7(2), that the marriage is in community of property. If the majority’s interpretation were correct, section 10(2) would be entirely redundant, adding nothing to what section 7(2) already accomplishes.
The dissenting judgment excavated the legislative history of the Recognition Act to bolster its interpretation. An early version of the Recognition of Customary Marriages Bill, B 110-98 contained a clause 10(2) that explicitly provided for dissolution of the customary marriage and stipulated that “the matrimonial property system of the marriage must be regulated by a matrimonial property contract entered into by the spouses and attested by a notary.” Although the dissolution provision was removed from the final legislation, the substance of the patrimonial regulation remained in what became section 10(2) and section 10(3).
Rogers J concluded that there was no reason to suppose the lawmaker intended to change the effect of the original clause concerning the antenuptial contract. The provision contemplated a contract concluded before the civil marriage that would regulate the civil marriage, regardless of when the customary marriage had been concluded or what its proprietary regime had been.
The minority’s interpretation acknowledges a practical reality that the majority seemingly overlooks: antenuptial contracts have historically been a feature of civil marriages but not customary marriages. The lawmaker would have been aware that many couples who conclude customary marriages intend afterward to formalise their relationship through a civil marriage preceded by an antenuptial contract. Section 10(2) authorises precisely this practice, which has been routinely followed and accepted by the legal profession for years.
Both judgments grappled with the heading of section 10, which reads “Change of marriage system.” Majiedt J drew comfort from this heading, arguing that it signals a change in the legal framework governing the marriage, not a change in matrimonial property regime. Rogers J countered that a change in marriage system is more fundamental than, and necessarily encompasses, a change in matrimonial property regime, and that the heading may simply be a vestige of earlier drafting that envisaged dissolution of the customary marriage.
The interpretative chasm extended to the question of what happens to the customary marriage upon conclusion of the civil marriage. Neither judgment accepted that the civil marriage dissolves the customary marriage through a legal mechanism akin to divorce, because section 8(1) of the Recognition Act provides that a customary marriage can be dissolved only by a decree of divorce or by death. Yet the judgments diverged on the implications of this conclusion.
For the majority, the absence of dissolution means the marriage relationship continues uninterrupted, albeit now governed by civil rather than customary law. The civil marriage is declaratory, confirming the pre-existing marriage rather than creating a new one. There is no dual marriage, no coexistence of two separate legal unions, because South African law has never countenanced such an arrangement.
For the minority, the absence of dissolution means the customary marriage persists alongside the civil marriage, resulting in a single marriage with a dual character – customary and civil. This hybrid marriage bears both the communal and familial incidents of customary law and the formal legal incidents of civil law. Where any particular incident of the two systems proves irreconcilable, interpretation or express legislative provision must determine which takes priority, as section 10(4) does by prohibiting a spouse in a civil marriage from entering another marriage.
These competing interpretations ultimately reflect different judicial philosophies about statutory construction, the weight to be accorded to legislative history versus plain language, the role of purposive interpretation, and the proper balance between contractual autonomy and paternalistic protection of vulnerable parties.
The Majority Judgment: Judicial Oversight as a Constitutional Imperative in Matrimonial Property Regime Changes
Majiedt J’s majority judgment rested on a bedrock principle: judicial oversight when changing matrimonial property regimes is not a mere procedural formality but a substantive safeguard embedded in our law to protect vulnerable spouses and creditors. The absence of such oversight in the context of section 10(2) conversions, if that provision were interpreted to permit extra-judicial changes, would render the provision constitutionally suspect.
The majority located this principle within the broader transformative project of the Recognition Act. The preamble to that statute articulates its primary aim: to make provision for the recognition of customary marriages, to specify requirements for validity, to provide for the equal status and capacity of spouses, to regulate proprietary consequences, and to regulate dissolution. These objectives represent a belated but ambitious legislative effort to remedy the historical humiliation and exclusion meted out to spouses in marriages entered into in accordance with indigenous African law and culture.
To understand the magnitude of this transformation, the majority judgment traced the appalling history of customary marriages under colonialism and apartheid. Customary marriages were not recognised at all but were contemptuously referred to as “customary unions.” Courts regarded them as contrary to principles of public policy and natural justice. The Black Administration Act 38 of 1927 perpetuated this discriminatory regime, treating customary unions as inferior arrangements unworthy of the dignity accorded to civil marriages.
The majority invoked this Court’s trilogy of landmark cases that progressively dismantled the patriarchal and discriminatory scaffolding surrounding customary marriages. In Gumede v President of the Republic of South Africa [2008] ZACC 23; 2009 (3) SA 152 (CC); 2009 (3) BCLR 243 (CC), this Court declared unconstitutional the provisions that kept pre-commencement customary marriages out of community of property while post-commencement customary marriages were in community of property. The Gumede case recognised that past courts and legislation accorded marriages under indigenous law no more than scant recognition under the lowly rubric of customary unions, and that the codified rules fostered a particularly crude and gendered form of inequality which left women and children singularly marginalised and vulnerable.
The Gumede case emphasised that the chief purpose of the Recognition Act is to reform customary law by jettisoning gendered inequality within marriage and the marital power of the husband, providing for the equal status and capacity of spouses. It introduces certainty and uniformity to the legal validity of customary marriages and regulates proprietary consequences under judicial supervision.
This Court subsequently decided Ramuhovhi v President of the Republic of South Africa [2017] ZACC 41; 2018 (2) SA 1 (CC); 2018 (2) BCLR 217 (CC), where it held that the default position of pre-commencement polygamous marriages being out of community of property amounted to unjustified discrimination based on gender. The Court ordered a change to make the default position in community of property. Then came Sithole v Sithole [2021] ZACC 7; 2021 (5) SA 34 (CC); 2021 (6) BCLR 597 (CC), which declared unconstitutional provisions of the MPA that had perpetuated discriminatory treatment of customary marriages concluded under the Black Administration Act.
The recurring theme threading through this trilogy is the protection of a vulnerable and systemically disadvantaged group – black women – by making the default position in customary marriages one of in community of property. This must be understood against the dreadful historic discrimination. The majority emphasized that section 6 of the Recognition Act makes plain that there is no hierarchy in the status of marriages; civil marriages are not to be regarded as superior in status and legal effect over customary marriages. To hold otherwise would undo all the transformative efforts of the new democratic dispensation in this field of law.
Against this constitutional backdrop, the majority turned to the mechanics of changing matrimonial property regimes. Section 21 of the MPA contains comprehensive requirements and an elaborate procedure. Spouses must jointly apply to court for leave to change their matrimonial property system. The court must be satisfied that there are sound reasons for the proposed change, that sufficient notice has been given to all creditors for amounts exceeding a prescribed threshold, and that no other person will be prejudiced by the change. Only then may the court authorise the parties to enter into a notarial contract regulating their future matrimonial property system.
The majority emphasised that section 7(5) of the Recognition Act makes section 21 applicable to customary marriages concluded after commencement, provided the husband does not have more than one spouse. This means parties to such customary marriages may change their proprietary regime, but they must do so through the section 21 mechanism. They are compelled to use this provision for any change to their marital property regime to be effectual. This strongly suggests that judicial oversight is critically important.
The majority rejected any suggestion that section 21 exists solely to protect creditors rather than spouses. While creditor protection is undoubtedly the direct purpose, there are manifest benefits for the parties as well. The section 21 application process introduces formality and an impartial umpire to fundamental changes in how spouses deal with their matrimonial property. A weaker spouse may, through this process, become better apprised of the change being effected and may be in a better position to recognise and object to prejudice.
The court process may give parties an opportunity to pause and reflect. It may afford the weaker spouse time to obtain sound legal advice or think carefully about the effect the proposed change may have on her financial position. At the time of the change, the weaker spouse may have acquired assets and wealth through the marriage with which she does not wish to part. There may be children whose interests require protection. These considerations are absent when parties first marry in an impecunious state.
The majority found powerful support for its interpretation in the principle that notarial contracts are specialised instruments with specific legal requirements. The prefixes “ante” and “post” are not mere verbal surplusage; they carry determinative legal significance. Antenuptial contracts are entered into by intended spouses before concluding a marriage. Section 87 of the Deeds Registries Act prescribes timelines for registration. Postnuptial contracts, by contrast, must be entered into with leave from a court and can only be concluded by existing spouses under section 21 of the MPA or equivalent provisions.
To conflate or confuse these terms, or reduce them to mere labels, would be to ignore the careful legislative architecture regulating matrimonial property. The majority found it inconceivable that parties’ subjective intentions could override this statutory regime. To interpret section 10(2) as permitting what is in substance a postnuptial contract to be executed and registered as if it were an antenuptial contract would be to allow spouses to circumvent section 21 entirely, rendering its protections nugatory.
The majority confronted the practical problem of the joint estate. What happens to assets accumulated during the customary marriage when parties later enter into a civil marriage? The Recognition Act makes no provision for spouses who concluded a customary marriage in community of property, and who now wish to conclude an antenuptial contract prior to a civil marriage, to divide their joint estate. The question then arises: what becomes of the assets and liabilities that fell under the customary marriage’s joint estate?
This introduces profound uncertainty and may cause serious prejudice to both spouses and creditors. The problem does not arise on the majority’s interpretation, which holds that the proprietary consequences simply carry over from the customary marriage to the civil marriage. If the customary marriage was in community of property, the civil marriage remains in community of property. If an antenuptial contract preceded the customary marriage, that contract continues to regulate the marriage after conversion.
The majority drew unfavourable comparisons with section 7(6) of the Recognition Act, which deals with polygamous marriages. That provision authorises a man in an existing customary marriage who wishes to enter into a further customary marriage to approach the court to approve a contract regulating his future matrimonial property. If the first marriage is in community of property, section 7(6) expressly authorises the court to terminate the joint estate and divide the joint property when approving the new matrimonial property system. The absence of any equivalent provision in section 10 is telling.
The majority also invoked the fundamental principle that matrimonial property can generally be divided only when the marriage is terminated, unless there is an explicit provision to the contrary. To permit division or reallocation of the joint estate by mere agreement upon a change of marriage system would violate this principle and create a unique and unexplained exception for spouses converting from customary to civil marriages.
The constitutional dimensions of the majority’s reasoning came sharply into focus when considering the position of women in customary marriages. The majority cited extensively from this Court’s recent judgment in EB v ER N.O. [2023] ZACC 32; 2024 (1) BCLR 16 (CC); 2024 (2) SA 1 (CC), a case dealing with redistribution orders under the Divorce Act 70 of 1979. Rogers J, writing for a unanimous court in the EB case, described how antenuptial contracts usually favour wealthier spouses and how gender discrimination means women tend to be poorer than men. Their stereotypical roles of childrearing and housework negatively affect their earning capacity. Black women are the “marginalised of the marginalised.”
The EB case catalogued the structural inequalities: women in South Africa are significantly more likely to be multidimensionally poor than men, with this burden falling more heavily on black women than white women. Women are typically less securely employed than men, concentrated in sectors with less advantageous remuneration and terms of employment. South Africa has among the highest gender income gaps, and the disparity increases with age. Women typically enter marriage poorer and more dependent than men, with less bargaining power.
The majority applied these insights to the present context. During the preparatory period of the Recognition Act, it was evident that two purposes animated the legislation: bringing customary marriages to the same legal standing as civil marriages, and protecting women. The South African Law Commission’s change of position from originally proposing that customary marriages be out of community of property to recommending that community of property be the automatic regime reflected this protective purpose. The Commission was responding to immense pushback from provincial workshops, the Rural Women’s Movement, the Commission on Gender Equality, the Gender Research Project, the Women’s Lobby and other groups who insisted on stronger protection for women given financial imbalances between spouses.
The majority concluded that interpreting section 10(2) to permit extra-judicial changes to matrimonial property regimes would recreate precisely the vulnerability that the Recognition Act sought to eliminate. A financially stronger spouse could exploit the weaker spouse into signing a disadvantageous contract without the safeguards of judicial scrutiny. The weaker spouse might not understand the full implications, might lack access to independent legal advice, or might sign under duress or undue influence. Without the requirement to satisfy a court that there are sound reasons for the change and that no prejudice will result, the weaker spouse would be left naked to the exercise of superior bargaining power.
The majority’s interpretation also addressed creditor protection. Section 21(1)(b) of the MPA requires that sufficient notice be given to all creditors of the spouses. This allows creditors who had extended credit on the basis of a joint estate to reassess their risk and, if necessary, call up security or take protective measures. The absence of any notice requirement in a section 10(2) conversion, if that provision permitted extra-judicial property regime changes, would blindside creditors and potentially render their security illusory.
Having found that a proper interpretation of section 10(2) does not permit the execution of an antenuptial contract after the customary marriage but before the civil marriage, the majority held that the purported antenuptial contract in this case was invalid. It was in substance a postnuptial contract, and its execution without compliance with section 21 rendered it void and unenforceable. The parties therefore remained married in community of property.
This conclusion meant that the conditional constitutional challenge fell away. The High Court had ventured into the terrain of constitutional invalidity only on the hypothesis that the antenuptial contract was valid. Since the majority found the contract invalid on interpretative grounds, there was no need to reach the constitutional question. The High Court had erred in addressing constitutionality when that issue was not properly before it. Consequently, this Court could not confirm the High Court’s order declaring section 10(2) unconstitutional.
The Dissenting Judgment: Contractual Autonomy and the Validity of Post-Customary, Pre-Civil Marriage Antenuptial Contracts
Rogers J’s dissenting judgment championed a fundamentally different value: the contractual autonomy of spouses and their freedom to structure their matrimonial property affairs according to their wishes. This autonomy, he held, is not only consistent with constitutional values but is actively promoted by allowing spouses to conclude an antenuptial contract before their civil marriage, regardless of any pre-existing customary marriage.
The dissent grappled with the vexing question of what becomes of the customary marriage when a civil marriage is superimposed upon it. Rogers J firmly rejected the notion that the civil marriage dissolves the customary marriage, as this would accord less dignity and value to customary unions. The express removal from the final legislation of a dissolution provision that had appeared in earlier drafts signalled legislative intent to preserve the customary marriage in some form.
Yet Rogers J equally rejected the idea that two separate marriages could coexist, as South African law has never recognised dual marriages between the same parties. His solution was conceptually sophisticated: the result is a single marriage with a dual character, bearing both customary and civil incidents. This hybrid marriage carries the communal and familial consequences that flow from customary law alongside the formal legal incidents of civil law. Spouses who conclude a civil marriage after a customary marriage almost certainly do not expect the communal and familial dimensions to disappear, nor should the lawmaker be presumed to have intended their obliteration.
Where any particular incident of the two systems proves irreconcilable, the dissent acknowledged that interpretation or express legislative provision must determine which takes priority. Section 10(4) of the Recognition Act provides such an example, prohibiting a spouse in a civil marriage from entering any other marriage. A party to a customary marriage on which a civil marriage has been superimposed pursuant to section 10 may not thereafter conclude a second customary marriage, even if polygamy were permitted by customary law.
The dissent found the majority’s position on this issue internally contradictory and conceptually muddled. The majority held that the civil marriage “subsumes” and “replaces” the customary marriage because a dual marriage is legally impossible, yet simultaneously insisted the customary marriage is not “terminated” because only divorce can achieve that result. Rogers J struggled to understand how one marriage can replace another without terminating it. If after the civil marriage there is only a civil marriage and the parties are no longer in a customary marriage, then surely the civil marriage has terminated the customary marriage.
Moreover, if the customary marriage no longer exists after being subsumed and replaced, then the proprietary consequences of the civil marriage cannot be found in section 7(2) of the Recognition Act, which expressly deals with consequences of “the customary marriage.” Yet this is precisely what the majority judgment attempted to do. The dissent found this approach logically untenable.
Rogers J subjected the majority’s interpretation to withering practical criticism. On the majority’s approach, spouses married in community of property pursuant to a customary marriage must bring an application under section 21 if they wish to enter a civil marriage out of community of property. This burdens them with the cost not only of concluding a notarial contract but also of full-blown court proceedings. The dissent’s interpretation permits such spouses simply to conclude an antenuptial contract before the civil marriage, avoiding unnecessary expense and delay.
The dissent also highlighted an anomaly the majority created but failed adequately to address. Consider spouses who executed an antenuptial contract before their customary marriage, so that marriage is out of community of property. They later wish to convert to a civil marriage. On the majority’s reasoning, must they re-execute their antenuptial contract before the civil marriage? The majority suggested the existing antenuptial contract would simply carry over, but this sits uncomfortably with the majority’s insistence that the civil marriage is a distinct legal event requiring specific regulation.
If couples who executed antenuptial contracts before their customary marriages do not need new contracts before civil marriages, why should couples who never executed such contracts be forced into the section 21 process? The differential treatment lacks principled justification. The dissent’s interpretation treats all couples uniformly: the civil marriage’s proprietary regime is determined by whether an antenuptial contract is concluded before the civil marriage, regardless of what proprietary regime governed the prior customary marriage.
On the crucial question of the joint estate, Rogers J offered a pragmatic solution that respected both spouses’ autonomy and their property rights. As between the spouses themselves, the fate of the joint estate should depend on proper interpretation of their antenuptial contract. Spouses may structure the contract to create, as between themselves, the same position as if their marriage had been out of community of property from the very beginning. They might agree to treat each spouse as currently owning assets equivalent to a half share of the former joint estate, or some other agreed allocation. The parties are free to unwind the joint estate in any way they wish.
The dissent anticipated that in future cases, with the law clarified, parties would draft their antenuptial contracts to address the joint estate explicitly. In past cases where the antenuptial contract’s proper interpretation does not resolve the matter, the spouses would continue to be co-owners in equal undivided half shares of the joint estate existing immediately before the civil marriage, with separate estates for future assets acquired from the date of the civil marriage.
Rogers J dismissed the majority’s suggestion that such an arrangement would be unworkably complex. While it might add a layer of complexity in some matrimonial disputes, it is hardly unknown for assets to fall outside a joint estate. Section 18 of the MPA excludes non-patrimonial damages recovered by a spouse from the joint estate. Testators frequently provide in wills that bequests to persons married in community of property shall not form part of the joint estate. Parties may by antenuptial contract create partial community of property by excluding certain assets. Rights under fideicommissa and usufructs fall outside the joint estate. The law has always countenanced what the majority pejoratively termed “two separate marital estates.”
The dissent sharply criticised the majority’s reliance on protection of vulnerable spouses, particularly women in customary marriages, as justification for its interpretation. Rogers J acknowledged that women in such marriages are often in a weaker bargaining position than their husbands and could be browbeaten into surrendering their share of the joint estate. However, the Recognition Act is not aimed at granting redress for unequal bargaining positions between spouses.
If the majority’s interpretation were adopted, a husband’s superior bargaining position would simply be exercised at a different time or in a different way. Either the husband would ensure an antenuptial contract was concluded before the customary marriage, or he would persuade his wife to join him in bringing a section 21 application. Regardless of which interpretation prevails, there will be a point in time where superior bargaining power could be exploited if a spouse were inclined to do so.
The dissent distinguished between two matters that must not be elided. Customary marriage as an institution was widely thought to place all women at an institutional disadvantage because of the legal consequences under customary law. Statutory recognition and regulation remedied this institutional disadvantage for all women. The dissent’s interpretation does not detract from this transformative achievement.
But this institutional reform has nothing to do with counterbalancing individual spouses’ superior bargaining positions. The Recognition Act discloses no purpose of addressing differential bargaining power between individual spouses. Women in customary marriages are in that respect in exactly the same position as women in civil marriages. The Recognition Act has brought about no change regarding bargaining power, and any concern about exploitation of weaker spouses applies equally to civil marriages.
The dissent dismissed as fanciful, perhaps even patronising, the majority’s suggestion that a section 21 application gives the weaker spouse time to obtain sound legal advice or think carefully about consequences. Why should a weaker spouse think more carefully about a section 21 application than when getting married initially or when concluding a pre-civil marriage antenuptial contract? Why assume the attorney instructed to bring the section 21 application would give the weaker spouse independent advice different from what a notary would provide? Both spouses must appear before the notary when executing an antenuptial contract, but both spouses need not consult with the attorney bringing the section 21 application. If a stronger spouse can dragoon the weaker spouse into an unfavourable antenuptial contract, the stronger spouse can equally do so in a section 21 application following immediately thereafter.
Turning to creditors, Rogers J found no prejudice to their interests under his interpretation. Whatever proprietary arrangements spouses make between themselves in an antenuptial contract executed before the civil marriage cannot change the historical fact that from the date of the customary marriage until the date of the civil marriage, the parties were married in community of property. Any debts incurred before the civil marriage remain joint and several liabilities of both spouses.
The dissent analogised to the position when a joint estate is dissolved by divorce. Unless a liquidator is appointed, spouses settle creditors and divide assets. The liability does not vanish. A creditor in respect of debt incurred during community of property may sue each ex-spouse. Current case law, exemplified by Du Plessis v Pienaar N.O. [2002] ZASCA 163; [2002] 4 All SA 311 (SCA); 2003 (1) SA 671 (SCA), holds that the creditor may recover the full amount from the spouse who contracted the debt and may, after excussing that spouse, recover half the debt from the other ex-spouse. The creditor is not confined to assets that once formed part of the joint estate; the ex-spouses themselves are liable.
This position must apply with even greater force in the section 10(2) context, since the civil marriage does not dissolve the customary marriage. Creditors may continue to look to both spouses for payment of debts incurred during the community marriage, regardless of in whose hands the assets of the former joint estate now vest. This approach does not imply a “constructive divorce”; the situation upon divorce merely illustrates that the law already possesses mechanisms to deal with unwinding of a joint estate.
The dissent found the majority’s interpretation to be constitutionally unobjectionable and saw no basis for declaring section 10(2) invalid. As regards the spouses, neither is arbitrarily deprived of their share of the joint estate or treated unequally. The matter is regulated by contract concluded by the spouses, or each spouse retains their half share in the joint estate as it existed just before the civil marriage. As to creditors, they are safeguarded by the same rules applying when community of property is dissolved by divorce. They do not lose their rights, and any reallocation of property pursuant to the antenuptial contract does not diminish the assets from which claims may be satisfied.
The High Court’s concern about lack of judicial oversight missed the mark. The purpose of section 21 is to safeguard creditors, not weaker spouses. Creditors are not prejudiced under the dissent’s interpretation. Moreover, a critical distinction exists between circumstances in which section 21 and section 10(2) operate. Under section 21, change of property regime occurs during the subsistence of a marriage of single character, whether customary or civil. Under section 10, by contrast, there is a further marriage, and this provides justification for regulation of the spouses’ future matrimonial property regime by a system chosen by them for that purpose.
Rogers J observed that there is no judicial oversight when parties marry for the first time, yet their choices may have material impact on their respective patrimonies. In a marriage in community of property, the wealthier spouse forthwith and without judicial oversight loses part of their assets. Nobody describes this as a “loophole,” yet the majority employed that pejorative term to characterise the dissent’s interpretation.
The dissent acknowledged that if the antenuptial contract regulates existing matrimonial property, such regulation accords with the parties’ contractual intention and respects their autonomy – precisely the same autonomy respected without judicial oversight when parties marry for the first time. Conversely, if the antenuptial contract does not regulate existing matrimonial property, neither spouse is deprived of anything. Either way, there can be no arbitrary deprivation of property.
Rogers J concluded that the dissent’s interpretation set at nought no spouse’s wishes, avoided unexpected consequences, and respected the contractual arrangements countless couples have made in good faith. The majority’s interpretation, by contrast, thwarts parties’ contractual intentions, tells couples years after their civil marriage that they have contrary to their belief been married in community of property, and potentially calls into question the validity of transactions concluded in reliance on the registered antenuptial contract. A spouse believing themselves married out of community of property might be shocked to be sequestrated along with the other spouse for debts run up by the latter, on the basis that there is in truth a community marriage.
On the specific facts of this case, Rogers J would have held that the antenuptial contract concluded in February 2019 was valid and that section 10(2) is not inconsistent with the Constitution. Whether the contract created the same position as if the parties had never been married in community of property, or whether they continued to be equal owners of the joint estate as it existed immediately before the civil marriage, would be a matter for the trial court to decide on proper interpretation of that contract. However, the first respondent had not appealed against the High Court’s declaration that the antenuptial contract was invalid, so in the absence of such appeal, the Constitutional Court lacked jurisdiction to set aside that declaration. The divorce trial would have to proceed on the basis that the contract was invalid and unenforceable.
Practical Implications for Family Law Practitioners: Navigating the Intersection of Customary and Civil Marriages Post-VVC
The VVC case leaves the family law profession in a state of considerable uncertainty, as the Constitutional Court split evenly on the central interpretative question. The majority judgment commands six votes while the dissent attracts three, meaning the majority’s interpretation prevails as binding precedent. However, the force and cogency of the dissenting reasoning, combined with the practical disruption the majority’s interpretation may cause, suggests this may not be the final word on section 10(2) of the Recognition Act.
For practitioners currently advising clients, the immediate takeaway is stark and unequivocal: any antenuptial contract purportedly concluded after a customary marriage but before a civil marriage is invalid and unenforceable unless the spouses have complied with section 21 of the MPA. This invalidates what has been routine practice in the profession for over two decades. Countless such contracts have been notarized and registered in deeds registries across the country, and the validity of every single one is now cast into doubt.
Financial institutions that extended credit to individuals married under customary law followed by civil marriage must review their loan portfolios. If the borrower presented a registered antenuptial contract as evidence of being married out of community of property, the bank may have security over assets that are in fact jointly owned. The spouse who did not sign the security documentation would not be bound by it, and may assert a half share in the secured property. Banks cannot assume that registered antenuptial contracts concluded in this manner are valid merely because they appear on the register. The VVC case establishes that registration does not cure the fundamental invalidity.
For matrimonial practitioners advising divorcing clients, the VVC case creates both opportunities and hazards. A spouse who signed an unfavourable antenuptial contract after the customary marriage may now challenge its validity, potentially transforming their financial position in the divorce. Property and assets that appeared to belong to one spouse alone may be revealed as forming part of a joint estate. The economically weaker spouse, typically the wife, may discover substantial wealth to which she is entitled in equal undivided shares.
Conversely, a spouse who believed they were married out of community of property and conducted their financial affairs on that basis may face devastating consequences. They may be held liable for half of the other spouse’s debts incurred during what they thought was a marriage out of community of property. They may find that property they believed they owned individually must now be shared equally. They may face sequestration proceedings for debts they knew nothing about. The litigation consequences will reverberate through the family law courts for years to come.
Practitioners advising couples who are currently married under customary law and contemplating a civil marriage must fundamentally revise their approach. The default advice must now be: if you wish your civil marriage to be out of community of property, you must first bring a joint application under section 21 to change your matrimonial property regime, and only thereafter conclude the civil marriage. The alternative is to accept that your civil marriage will be in community of property, regardless of any antenuptial contract you may execute.
The section 21 procedure is neither simple nor inexpensive. It requires comprehensive disclosure of assets and liabilities, notice to the Registrar of Deeds, publication of notice in the Government Gazette and in English and Afrikaans newspapers, certified notice by post to all creditors whether actual or contingent, and detailed affidavits satisfying the court that there are sound reasons for the change and that no person will be prejudiced. The court must be provided with sufficient information to assess whether creditors or other persons will be prejudiced. The entire process typically takes several months and involves substantial legal costs.
Practitioners must carefully explain to clients that the section 21 application is not a formality but a substantive judicial inquiry. The court exercises a discretion and may refuse the application if sound reasons are not established or if prejudice to third parties is demonstrated or suspected. Clients accustomed to the relative simplicity of executing an antenuptial contract before a notary may balk at the time, expense, and uncertainty of the section 21 route.
For couples who executed antenuptial contracts before their customary marriages, the VVC case provides some comfort but not complete clarity. The majority judgment suggests that such contracts continue to regulate the marriage after conversion to a civil marriage, so no new antenuptial contract is required before the civil marriage. However, the majority does not address this scenario in detail, and cautious practitioners may advise clients to bring a section 21 application out of an abundance of caution, or at minimum to execute a confirmatory antenuptial contract before the civil marriage that explicitly incorporates and confirms the earlier contract.
The position of creditors requires careful attention from commercial practitioners. A creditor who extended credit to a spouse married under customary law must ascertain whether a civil marriage was subsequently concluded and, if so, whether an antenuptial contract purportedly regulates that civil marriage. If such a contract was concluded after the customary marriage, the VVC case establishes it is invalid. The creditor’s rights must be assessed on the basis that the spouses are married in community of property, with all that entails for joint and several liability and the need for spousal consent to encumber joint assets.
The VVC case may paradoxically increase credit risk for spouses in customary marriages who later conclude civil marriages. Lenders may become reluctant to extend credit to such individuals, or may charge higher interest rates to compensate for uncertainty about the matrimonial property regime. This could have the perverse effect of financially disadvantaging the very people the Recognition Act sought to protect. Lenders may insist on section 21 applications and court orders before accepting that a marriage is out of community of property, adding cost and delay to lending transactions.
Insurance companies face similar challenges. Life insurance policies, short-term insurance policies, and policies over assets may have been concluded on the basis of information about matrimonial property regimes that the VVC case now reveals to be incorrect. Beneficiary nominations may be invalid if they purported to deal with assets forming part of a joint estate as if they were separate property. The insurance industry must conduct a systematic review of policies issued to individuals in customary marriages followed by civil marriages.
Estate planning for clients in customary marriages followed by civil marriages requires fundamental reconsideration. Wills drafted on the assumption that spouses are married out of community of property may make no provision for joint estate assets. A testator may have bequeathed “my” property to beneficiaries without realising that “my” property is co-owned in undivided shares with the spouse. The will may be partially or wholly ineffective. Executors must carefully scrutinise the marital history of deceased estates and may need to join surviving spouses as parties to estate proceedings where disputes about asset ownership arise.
The law of succession encounters particular difficulties with the accrual system. Many of the void antenuptial contracts expressly adopted the accrual system as provided in Chapter I of the MPA. If the antenuptial contract is void, is the accrual system nonetheless applicable? The majority judgment does not directly address this question, but the logical answer appears to be no. The accrual system applies only where an antenuptial contract expressly adopts it. If there is no valid antenuptial contract, there can be no accrual system. Estates administered on the assumption that the accrual system applied may need to be reopened and re-administered.
Tax practitioners must consider the revenue implications. The South African Revenue Service assesses spouses married in community of property differently from those married out of community of property for purposes of estate duty, donations tax, capital gains tax, and income tax attribution. Taxpayers who filed returns on the basis of being married out of community of property pursuant to void antenuptial contracts may have submitted incorrect returns. SARS may potentially reopen assessments, impose additional taxes, and levy penalties and interest. Conversely, taxpayers may be entitled to refunds where they paid tax on the basis of being married out of community of property but are in law married in community of property.
The judgment raises profound questions about the status of property development and business transactions. Suppose spouses married under customary law concluded a void antenuptial contract and then entered a civil marriage. One spouse, believing himself married out of community of property, then established a business as a sole proprietor, acquired property, entered contracts, and created substantial wealth. The other spouse took no part in these activities and may not even have known about them. On dissolution of the marriage, is the non-participating spouse entitled to half of everything acquired during the civil marriage? The majority judgment strongly suggests the answer is yes, as the spouses remained married in community of property throughout.
This outcome may strike many as unjust, particularly where one spouse built a successful business through their own efforts while the other spouse contributed nothing. However, this is precisely how community of property operates, and the VVC case confirms that spouses cannot escape these consequences by executing an antenuptial contract after their customary marriage. The only available remedy for the entrepreneurial spouse would have been to bring a section 21 application before building the business, or to rely on the redistribution provisions of section 7(3) of the Divorce Act 70 of 1979 at the time of divorce, arguing for unequal division based on the substantial misconduct of the other spouse or other factors rendering equal division inequitable.
The VVC case contains important obiter dicta regarding the historical treatment of customary marriages and the transformative objectives of the Recognition Act. Practitioners must be alert to these broader themes when arguing cases involving customary law. The majority judgment in VVC aligns itself firmly with the trilogy of Gumede, Ramuhovhi, and Sithole cases, emphasising protection of black women from historical discrimination and contemporary vulnerability. These constitutional values may influence judicial discretion in applications under section 21, redistribution applications under section 7(3) of the Divorce Act, and other areas where courts exercise equitable jurisdiction.
The dissenting judgment, while not binding, merits close attention. Rogers J’s reasoning may influence future legislative reform or may be adopted by the Supreme Court of Appeal or Constitutional Court in a future case presenting slightly different facts or arguments. The dissent’s emphasis on contractual autonomy, its practical concerns about cost and accessibility of justice, and its observation that the Recognition Act was not primarily aimed at addressing bargaining power imbalances between individual spouses, may all find favour with future courts or with Parliament when it considers amendments to the Recognition Act.
The South African Law Reform Commission has already indicated in discussion papers that the current formalities for changing matrimonial property regimes are unaffordable and too strict. The Commission has proposed less stringent alternatives that would protect third-party interests without requiring court applications. The VVC case may accelerate legislative reform in this area, potentially introducing a middle path between the majority’s insistence on full section 21 compliance and the dissent’s permissive approach to antenuptial contracts.
Practitioners should advise clients that the law in this area remains in flux. The VVC case settles the immediate question but opens many subsidiary issues that will require future litigation to resolve. Strategic decisions in current cases must be made with awareness that the legal landscape may shift again, either through further judicial development or through legislative intervention.
The costs implications of the VVC case warrant particular mention. The Constitutional Court declined to make any costs order, directing that there be no order as to costs in that court. The High Court had ordered the first respondent to pay the applicant’s costs despite his non-appearance, on the basis that he had put up a contradictory version that forced the applicant to litigate. The dissenting judgment in the Constitutional Court expressed the view that the costs order in the High Court should be set aside and that parties should bear their own costs there as well, since the applicant should not have succeeded in obtaining a declaration that the antenuptial contract was invalid.
For litigants currently before the courts with similar facts, the VVC case creates a difficult costs landscape. A spouse who successfully argues that an antenuptial contract is invalid may nonetheless face an argument that costs should not follow the result because the legal position was uncertain and the other spouse acted reasonably in relying on the contract. Conversely, a spouse who loses such an argument may contend that they should not pay costs because they relied on decades of contrary practice in the profession and on registered antenuptial contracts that appeared valid on their face.
The VVC case ultimately exemplifies the ongoing tensions in South African family law between protection of vulnerable parties and respect for party autonomy, between historical redress and contemporary fairness, between substantive justice and procedural efficiency, and between judicial interpretation and legislative reform. Practitioners navigating these tensions must remain alert to the constitutional values animating family law, the specific histories of their clients’ marriages, the technical requirements of matrimonial property law, and the broader policy debates shaping the future direction of legislation in this area. The intersection of customary and civil marriages will continue to generate complex legal questions requiring sophisticated professional judgment, careful research, and above all, clear communication with clients about legal uncertainties and practical options.
Questions and Answers
What was the central legal question the Constitutional Court had to determine in the VVC case?
The central question was whether an antenuptial contract concluded after spouses had already entered into a customary marriage but before they subsequently entered into a civil marriage with each other was valid and enforceable. This required the Court to interpret section 10(2) of the Recognition of Customary Marriages Act 120 of 1998 and determine what the phrase “their marriage” in that provision refers to – the existing customary marriage or the contemplated civil marriage.
What did the majority judgment hold regarding the timing requirements for executing a valid antenuptial contract?
The majority held that an antenuptial contract, by its very nature and etymology, must be concluded before the commencement of the marriage it purports to regulate. Since the parties in this case were already married under customary law when they executed the contract, they were existing spouses, not intended spouses. The contract was therefore postnuptial in character. Under South African law, postnuptial contracts can only be validly concluded with judicial oversight pursuant to section 21 of the Matrimonial Property Act 88 of 1984. Because the parties had not complied with the section 21 procedure, their purported antenuptial contract was invalid and unenforceable.
How did the majority judgment interpret the effect of a civil marriage on a pre-existing customary marriage?
The majority held that when parties to a customary marriage subsequently conclude a civil marriage with each other, the civil marriage subsumes or replaces the customary marriage as the governing legal framework. However, this does not constitute termination or dissolution of the marriage relationship itself, which can only occur through a decree of divorce under section 8(1) of the Recognition Act or through death. The marriage relationship continues uninterrupted, but it is now governed by civil law rather than customary law. South African law does not recognise dual marriages between the same parties, so there cannot be a simultaneous customary and civil marriage coexisting as two separate legal unions.
What happens to the joint estate created during a customary marriage when the parties later enter into a civil marriage?
The majority judgment held that the proprietary consequences of the customary marriage carry over into the civil marriage. If the customary marriage was in community of property because no antenuptial contract preceded it, the subsequent civil marriage will also be in community of property. The joint estate created during the customary marriage continues to exist. The Recognition Act makes no provision for division or liquidation of the joint estate upon conversion of the marriage system, and general principles of matrimonial property law dictate that a joint estate can only be divided upon termination of the marriage through divorce or death, unless express statutory provision permits otherwise.
What procedure must spouses follow if they wish to change their matrimonial property regime during the subsistence of their customary marriage?
Spouses who wish to change their matrimonial property regime must bring a joint application to court under section 21 of the Matrimonial Property Act. This provision is made applicable to customary marriages by section 7(5) of the Recognition Act. The court must be satisfied that there are sound reasons for the proposed change, that sufficient notice has been given to all creditors of the spouses, and that no other person will be prejudiced by the change. Only then may the court authorise the parties to enter into a notarial contract regulating their future matrimonial property system. This same procedure must be followed if spouses wish to change their property regime before converting from a customary to a civil marriage.
What was the dissenting judgment’s interpretation of section 10(2) of the Recognition Act?
The dissenting judgment, authored by Rogers J, held that section 10(2) permits spouses to execute an antenuptial contract after their customary marriage but before their civil marriage, and that such a contract validly regulates the civil marriage. The dissent reasoned that the word “marriage” appearing multiple times in the subsection refers consistently to the civil marriage mentioned at the beginning of the provision. The phrase “their marriage” at the end of the subsection is therefore a reference to the civil marriage, and an antenuptial contract concluded before that civil marriage is validly executed “ante” (before) that particular nuptial event. The customary marriage is not dissolved but rather continues alongside the civil marriage, creating a single marriage with dual character bearing both customary and civil incidents.
How did the dissenting judgment propose to deal with the joint estate created during the customary marriage?
The dissent held that the fate of the joint estate should depend on proper interpretation of the antenuptial contract executed before the civil marriage. Spouses are free to structure their contract to create, as between themselves, whatever proprietary arrangement they wish, including treating the joint estate as if it had never existed or allocating its assets in agreed proportions. If the antenuptial contract does not address the joint estate, the spouses would continue to be co-owners in equal undivided half shares of that estate, with separate estates for assets acquired after the civil marriage. The dissent noted that the law has always recognised situations where some assets fall outside a joint estate, such as non-patrimonial damages under section 18 of the Matrimonial Property Act, assets excluded by testamentary disposition, or assets subject to fideicommissa and usufructs.
What constitutional rights did the applicant allege were violated by section 10(2) of the Recognition Act?
The applicant contended that section 10(2) violated section 25(1) of the Constitution, which prohibits arbitrary deprivation of property, because it allegedly permits spouses to change their matrimonial property regime without judicial oversight, thereby depriving the economically weaker spouse of their half share in the joint estate. She also argued that the provision violates section 9(1) and (3) of the Constitution, which guarantee equality and prohibit unfair discrimination. Her submission was that the absence of judicial oversight constituted unfair discrimination against financially weaker spouses in customary marriages, the majority of whom are black women, thereby discriminating on grounds of gender, race, and marital status.
Did the Constitutional Court make a definitive ruling on the constitutionality of section 10(2)?
No. The majority judgment held that because the antenuptial contract was invalid on interpretative grounds, the conditional constitutional challenge fell away and it was unnecessary to determine whether section 10(2) was unconstitutional. The High Court had erred in venturing into the constitutional question, which was only meant to arise if the antenuptial contract was found valid. Consequently, the Constitutional Court declined to confirm the High Court’s declaration of constitutional invalidity. The dissenting judgment, having reached a different conclusion on the validity of the antenuptial contract, went on to consider constitutionality and found that section 10(2) passes constitutional muster and does not violate either the property clause or the equality provisions.
What is the legal position of creditors who extended credit to spouses during their customary marriage if those spouses later conclude a civil marriage?
Both judgments agreed that creditors are not prejudiced. The majority judgment emphasised that the proprietary regime remains unchanged, so if creditors extended credit on the basis of a community of property marriage, that regime continues. The dissenting judgment held that even if an antenuptial contract is executed before the civil marriage, this cannot retrospectively alter the historical fact that the parties were married in community of property from the date of the customary marriage until the date of the civil marriage. Any debts incurred during that period remain joint and several liabilities of both spouses, enforceable according to the principles established in the Du Plessis case and similar authorities. Whatever reallocation of property the spouses may effect by contract does not diminish the assets from which creditors’ claims may be satisfied.
What registration requirements apply to antenuptial contracts under South African law?
Section 86 of the Deeds Registries Act 47 of 1937 provides that an antenuptial contract not registered in accordance with section 87 shall be of no force or effect against any person who is not party to the contract. Section 87 requires that an antenuptial contract executed in South Africa must be attested by a notary and registered in a deeds registry within three months after the date of its execution, or within such extended period as the court may allow. An antenuptial contract executed outside South Africa must be registered within six months. These provisions establish strict formal requirements for the validity and enforceability of antenuptial contracts against third parties.
Can spouses who are already married in community of property under a customary marriage convert to a civil marriage out of community of property, and if so, how?
Yes, but according to the majority judgment they must follow a specific procedure. They cannot simply execute an antenuptial contract before the civil marriage. Instead, they must first bring a joint application under section 21 of the Matrimonial Property Act to change their existing matrimonial property regime from in community of property to out of community of property. This requires court approval, notice to creditors, and satisfaction of the court that there are sound reasons for the change and no prejudice to third parties. Only after obtaining a court order under section 21 and executing the authorised notarial contract may they then proceed to conclude their civil marriage, which will be governed by the new matrimonial property regime established by the court-authorised contract.
What historical context informed the Constitutional Court’s approach to interpreting the Recognition Act?
The majority judgment traced the appalling history of customary marriages under colonialism and apartheid. Customary marriages were not recognised as valid marriages but were contemptuously referred to as customary unions. The Black Administration Act 38 of 1927 perpetuated this discriminatory regime. Courts regarded customary unions as contrary to public policy and natural justice. This discrimination particularly disadvantaged black women, who were treated as perpetual minors under the marital power of their husbands. The Recognition of Customary Marriages Act was enacted as a transformative measure to remedy this historical humiliation and exclusion, to place customary marriages on equal footing with civil marriages, and to protect the property rights of women in customary marriages. This historical context informed the majority’s protective interpretation of the legislation.
What did the Constitutional Court say about the trilogy of cases dealing with customary marriages and their proprietary consequences?
The majority judgment relied heavily on three previous Constitutional Court cases as establishing the trajectory of constitutional development in this area. The Gumede case declared unconstitutional provisions that kept pre-commencement customary marriages out of community of property, emphasising that the chief purpose of the Recognition Act is to reform customary law by eliminating gendered inequality. The Ramuhovhi case held that the default position for pre-commencement polygamous marriages being out of community of property amounted to unjustified discrimination based on gender. The Sithole case declared unconstitutional provisions of the Matrimonial Property Act that perpetuated discriminatory treatment of customary marriages concluded under the Black Administration Act. The recurring theme threading through this trilogy is protection of black women as a vulnerable and systemically disadvantaged group by making the default matrimonial property regime one of in community of property.
What practical advice would flow from the majority judgment for couples currently married under customary law who wish to enter into a civil marriage out of community of property?
Couples in this situation must understand that they cannot simply execute an antenuptial contract before their civil marriage. If they are currently married in community of property under their customary marriage and wish their civil marriage to be out of community of property, they must first bring a joint application under section 21 of the Matrimonial Property Act. This involves comprehensive disclosure of assets and liabilities, notice to the Registrar of Deeds under section 97(1) of the Deeds Registries Act, publication of notice in the Government Gazette and newspapers, certified notice to all creditors, and detailed affidavits satisfying the court that there are sound reasons for the change and no prejudice to third parties. Only after obtaining the court order and executing the authorised notarial contract may they proceed to conclude their civil marriage. This process is time-consuming and expensive but is the only legally valid route following the VVC case.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of iDivorce and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculator and Accrual Calculator.
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