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What VVC v JRM means for customary marriages, later civil marriages and matrimonial property in South Africa
A document signed after a customary marriage and labelled an antenuptial contract cannot validly change the matrimonial property consequences that already exist — even if it is signed before a later civil marriage between the same spouses, and even if it is properly notarised.
The Constitutional Court confirmed this in VVC v JRM and Others (CCT202/24) [2026] ZACC 2; 2026 (3) BCLR 234 (CC), holding that the lawful route to change an existing matrimonial property regime is ordinarily a joint court application under section 21 of the Matrimonial Property Act 88 of 1984.
That becomes particularly important where spouses have already concluded a customary marriage and later sign a document described as an ANC before entering into a civil marriage with each other.
This article provides general information about South African law. It does not constitute legal advice and does not predict the outcome of an individual matter.
| Question | General position |
Can spouses sign an ANC after a customary marriage has already been concluded? | Not as a simple way of changing the existing matrimonial property regime. |
What if they sign the ANC before a later civil marriage? | A later civil marriage does not automatically reset the property consequences of the existing customary marriage. |
What did VVC v JRM decide? | The Constitutional Court confirmed that a post-customary-marriage ANC cannot validly change the existing matrimonial property regime without the required judicial process. |
What is the lawful route to change the regime? | For qualifying monogamous customary marriages, section 21 of the Matrimonial Property Act provides the court-supervised mechanism. |
Is a customary marriage automatically in community of property? | A monogamous customary marriage falling under section 7(2) is in community of property unless those consequences were excluded by a valid ANC concluded beforehand. |
Does registration determine validity? | No. Failure to register a customary marriage does not, by itself, invalidate the marriage. |
Can spouses simply sign a private postnuptial agreement? | No. An extra-judicial agreement that effectively changes the matrimonial property system is not a substitute for section 21. |
The legal problem is easier to understand once the timing is separated properly.
There are three materially different situations:
ANC before the customary marriage. Where spouses validly conclude an ANC before a monogamous customary marriage, the ANC may regulate the matrimonial property system of that marriage. Section 7(2) of the Recognition of Customary Marriages Act 120 of 1998 provides that a monogamous customary marriage is ordinarily in community of property and of profit and loss unless those consequences are specifically excluded by an ANC regulating the marriage.
ANC after the customary marriage. Once the customary marriage has already come into existence, the matrimonial property consequences of that marriage are already operating. The spouses cannot ordinarily change those consequences merely by signing a document and calling it an antenuptial contract. At that point, the document is in substance an attempt to alter the proprietary consequences of an existing marriage. That is where section 21 becomes relevant.
Civil marriage after the customary marriage. Section 10 of the Recognition of Customary Marriages Act permits spouses in a monogamous customary marriage to conclude a civil marriage with each other in the circumstances allowed by the Act. But the later civil marriage does not dissolve the existing customary marriage first and create a completely new matrimonial-property starting point. That was central to VVC v JRM.
The spouses in VVC v JRM concluded a customary marriage on 5 August 2011.
Their marriage was in community of property.
Years later, on 19 February 2019, they signed a notarial agreement described as an antenuptial contract. The document provided that their contemplated civil marriage would be out of community of property and subject to the accrual system.
They later concluded a civil marriage with each other on 10 June 2021.
When divorce proceedings followed, a dispute arose about whether the later ANC had validly altered the matrimonial property consequences of the existing customary marriage.
The Constitutional Court held that it had not.
The Court’s reasoning is important.
An ANC is, by its nature, a contract concluded before marriage.
Once the spouses are already married, they are already subject to a matrimonial property system.
If they want to change that system, they cannot simply do so through a private extra-judicial agreement.
The Court confirmed that section 21 of the Matrimonial Property Act provides the mechanism for changing an existing matrimonial property regime under judicial supervision.
The majority held that an ANC can only be concluded before marriage and that parties seeking to alter their matrimonial property regime during an existing marriage must use the section 21 process.
The judgment was not unanimous. Rogers J dissented, with Madlanga ADCJ and Opperman AJ concurring in the dissent, on aspects of the interpretation and effect of section 10 of the Recognition of Customary Marriages Act. The practical guidance in this article follows the majority judgment.
A common misconception is that entering into a civil marriage after a customary marriage gives the spouses a fresh opportunity to choose a new property regime.
That is not the position.
The existing customary marriage is not first dissolved merely because the spouses later marry each other under civil law.
As a result, the patrimonial consequences that already arose under the customary marriage cannot simply be wiped away by the later ceremony.
In VVC v JRM, the Court rejected the idea that section 10(2) could be used as a covert route to change the proprietary consequences of an existing marriage without judicial oversight.
Section 7(5) of the Recognition of Customary Marriages Act expressly makes section 21 of the Matrimonial Property Act applicable to a customary marriage entered into after the commencement of the Recognition Act where the husband does not have more than one spouse.
That provision is important because it gives qualifying spouses a lawful route to change their matrimonial property system.
Under section 21, the spouses may jointly apply to court for leave to change the matrimonial property system.
The court must be satisfied that:
If those requirements are met, the court may authorise the spouses to enter into a notarial contract regulating their future matrimonial property system.
The court process protects more than the wishes of the spouses.
It also protects creditors and other affected parties from a private restructuring of matrimonial property rights that could prejudice them.
That is why the Court in VVC v JRM emphasised judicial oversight.
For example, spouses married in community of property cannot simply remove assets from the joint estate by private agreement and thereby potentially affect existing creditors.
The legal change must take place through the prescribed process.
This is where the judgment has significant practical importance.
A document may look completely formal. It may have been signed before a notary, called an “antenuptial contract,” drafted in anticipation of a later civil marriage, and registered or intended for registration.
But those formal features do not necessarily mean that it validly changed a matrimonial property regime that was already in existence.
If the ANC was signed only after the customary marriage had already been concluded, the first question should be: what matrimonial property regime was already operating when the document was signed?
The second question is whether the spouses complied with section 21 if they were attempting to change that regime.
Registration and validity are separate questions.
Section 4(9) of the Recognition of Customary Marriages Act expressly provides that failure to register a customary marriage does not affect its validity.
This matters because parties sometimes assume they were not yet legally married when they signed an ANC simply because the customary marriage had not been registered.
That can be a dangerous assumption.
The real enquiry is whether a valid customary marriage had already been concluded under the applicable law and facts.
In disputes of this kind, chronology is often critical.
The following dates should be established carefully:
A later document cannot be evaluated properly without first establishing whether the spouses were already married when they signed it.
That becomes a threshold issue.
Before deciding whether a later ANC was too late, it may first be necessary to determine whether a valid customary marriage existed at all.
Customary marriage validity is fact-specific and may depend on the parties’ conduct, family participation, lobolo arrangements and the relevant customary practices.
A failure to register the marriage is not decisive.
Where validity is genuinely disputed, that issue may need to be resolved before the matrimonial property regime can be determined.
Where a qualifying monogamous customary marriage was concluded without a prior ANC, section 7(2) may result in the marriage being in community of property.
That means a joint estate already exists.
A later ANC purporting to move the spouses out of community of property cannot simply undo the joint estate privately.
The section 21 process is required if the spouses want to change the matrimonial property regime lawfully.
That depends on the nature of the document and the relief being sought.
What VVC v JRM makes clear is that the document cannot simply operate as a valid ANC changing the proprietary consequences of an existing customary marriage without compliance with the required legal process.
Any argument that the document has some other contractual or evidential significance would need to be considered separately and on its own facts.
It should not be assumed that labelling the document an ANC makes it effective as one.
Where the chronology is uncertain or a later ANC has already been signed, spouses should avoid making major financial decisions based on assumptions about the matrimonial regime.
In particular, it is risky to:
The regime should be established first.
Where qualifying spouses in an existing customary marriage genuinely want to change their matrimonial property regime, the correct process is ordinarily a joint section 21 application.
That is a different legal question from whether an ANC signed after the customary marriage was valid.
For a detailed explanation of the court process, creditor notice, sound reasons and registration requirements, see MVA’s guide: How to Change Your Matrimonial Property Regime After Marriage.
That separation is deliberate. This article deals with the VVC v JRM/customary-marriage problem. The separate section 21 guide deals with how the change is actually made.
Not as a simple substitute for the section 21 process where the customary marriage already exists and the spouses want to change its matrimonial property regime.
Failure to register does not itself make an otherwise valid customary marriage invalid.
If the spouses are already married by customary law, a document signed before the later civil ceremony is still being signed during an existing marriage. VVC v JRM confirms that the later civil marriage does not provide a shortcut around section 21.
Not in the sense of wiping out the matrimonial property consequences that already arose from the customary marriage.
The actual regime and the basis on which it arose must be established. If the spouses later want to change that existing regime, section 21 may still be relevant for a qualifying monogamous customary marriage.
Potentially, through the section 21 process where the statutory requirements are satisfied. The Constitutional Court expressly recognised that section 21 can be used to change between different matrimonial property systems.
Section 21 contemplates a joint application. A unilateral wish to change the matrimonial property system does not satisfy that mechanism.
Disputes involving a customary marriage and a later ANC are highly sensitive to chronology.
The first task is usually to establish: whether and when a valid customary marriage was concluded; what matrimonial property regime applied from that date; whether an ANC existed before the customary marriage; when any later notarial agreement was signed; whether a later civil marriage took place; and whether any section 21 process was followed.
Only once those questions are answered can the legal effect of the documents be assessed properly.
Martin Vermaak Attorneys Inc. advises on South African customary marriages, antenuptial contracts, matrimonial property regimes, section 21 applications and divorce disputes involving competing or incorrectly assumed property regimes.
For related guidance, see MVA’s articles on Antenuptial Contracts South Africa.
Author: Martin Vermaak, B.Proc, LLB
Attorney of the High Court of South Africa | Director, Martin Vermaak Attorneys | Over 20 years’ experience in divorce and family law
Disclaimer
This information has been prepared for general educational purposes only and is not intended to constitute legal, financial, tax or other professional advice. South African family law is fact-specific, and the applicable legal position may depend on the circumstances of the individual matter. Readers should obtain independent professional advice appropriate to their circumstances before making legal, financial or other decisions.
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