The Matrimonial Property Rights & Consequences From A Customary To A Civil Marriages

In the landmark Judgement of VVC v JRM and others CCT202/24 the South African Constitutional Court has clarified and cemented how matrimonial property rights, consequences and regimes operate when couples move from a customary marriage to a civil marriage. The judgment, handed down on 21 January 2026, overturned a High Court ruling that had found Section 10(2) Recognition of Customary Marriages Act unconstitutional. The Constitutional Court has made it clear that couples cannot casually change their matrimonial property arrangements once a customary marriage already exists without judicial oversight.

The Recognition of Customary Marriages Act has been adopted to correct the historical marginalization of customary marriages and to place them on the same equal legal footing as civil marriages.

Once a customary marriage exists, any change to the matrimonial property regime requires a court application in terms of Section 21(1) of the Matrimonial Property Act – Postnuptial Contract. This process is designed to protect both spouses and creditors and to prevent abuse. 

A key aspect is that a customary marriage does not end when spouses later enter into a civil marriage with each other. Instead, the civil marriage absorbs or “subsumes” the customary marriage together with the marital consequences of the initial matrimonial property regime. 

• i.e. – If the initial customary marriage was concluded without an antenuptial contract – the subsequent civil marriage would remain in community of property – following and flowing from the consequences of the initial customary marriage. 

In an oversimplification of the judgement, the court confirmed that all Antenuptial Contracts concluded after the commencement of the initial customary marriage are invalid. 

In legal terms, there is one continuous marriage that begins under customary law and later becomes governed by civil law. That marriage can only be dissolved only by death or divorce. By thinking that a civil marriage terminates customary marriage would undermine the very purpose of the Recognition of Customary Marriage Act and revive discrimination against customary marriages. The amendment of the act restores the correct interpretation of the Recognition of Customary Marriages Act and is designed to recognize customary marriages and to protect women by giving them equal status and property rights.