26/01/2026
Customary-to-Civil “Conversion”: Constitutional Court Clarifies the Rules of the Game for Antenuptial Contracts
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Introduction
In VVC v JRM and Others [2026] ZACC 2 (delivered 21 January 2026), the Constitutional Court addressed a high-impact question in South African family law: Can spouses who are already married to each other under customary law “switch” their matrimonial property regime simply by signing an antenuptial contract (ANC) before concluding a later civil marriage?
The Court’s answer has immediate, practical consequences for divorce strategy, estate planning, creditor risk, and the drafting of marriage contracts.
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The Facts
• The parties first concluded a customary marriage in community of property on 5 August 2011. A customary marriage is negotiated and entered into or celebrated in accordance with customary law.
• Years later, they decided to conclude a civil marriage and signed an ANC on 19 February 2019 (purporting to make the civil marriage out of community of property with accrual).
• They then concluded the civil marriage on 10 June 2021, without dividing the joint estate created by the customary marriage.
• During divorce litigation, the validity of that ANC and the constitutionality of section 10(2) of the Recognition of Customary Marriages Act 120 of 1998 became central issues.
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To whom does the judgment apply?
1. Spouses married under customary law who later plan a civil marriage (or who have already done so).
2. Anyone contemplating an ANC “between” the customary marriage and the later civil marriage.
3. Divorce litigants disputing whether the marriage is in community or out of community (and whether accrual applies).
4. Attorneys and notaries drafting and attesting ANC documentation—where the commercial risk of getting the property regime wrong is significant.
5. Creditors and financial institutions, because the Court emphasised the governance and risk logic behind judicial oversight when changing property regimes midstream.
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Key Findings:
1) The High Court’s constitutional invalidity order was not confirmed
The Constitutional Court held that the High Court should not have reached the constitutional question in the way it did, and it did not confirm the declaration that section 10(2) is unconstitutional.
2) Majority: section 10(2) is about changing the marriage system, not the matrimonial property system
The majority interpretation draws a sharp governance line: section 10(2) regulates a change from customary to civil marriage, but it does not create a “workaround” for changing the matrimonial property regime without judicial oversight.
3) Majority: the ANC was invalid because the required judicial process was not followed
The Court held that, because the parties were already married in community of property, an attempt to change that proprietary regime required judicial oversight (notably via section 21 of the Matrimonial Property Act). Since that did not happen, the purported ANC was invalid, and the parties remain married in community of property.
4) Dissent: section 10(2) can validly allow a pre-civil ANC to regulate the future civil marriage (and is not unconstitutional)
Rogers J (dissenting) took a different, contract-forward approach: he reasoned that section 10(2) is not unconstitutional, and that the proprietary outcome can be regulated by the ANC (or, failing that, the joint estate remains preserved alongside future separate estates).
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Conclusion:
The strategic takeaway is straightforward: a customary-to-civil “conversion” is not a shortcut to restructure matrimonial property consequences. If spouses are already married in community of property under customary law, any real change to that property regime must be engineered through the correct legal mechanism with judicial oversight, not simply via an ANC signed before the later civil ceremony.
Forward-looking risk management tip: if clients have already concluded a civil marriage after a customary marriage and relied on an ANC “in between”, they should urgently obtain advice to audit the property regime, validate transactions concluded on that assumption, and align any future planning (including estate and creditor exposure) with the Constitutional Court’s clarity.
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