Cape Town – The Constitutional Court has declined to confirm a High Court order declaring section 10(2) of the Recognition of Customary Marriages Act unconstitutional, finding instead that the provision does not permit spouses to change their matrimonial property regime without judicial oversight.
In a judgment handed down on 21 January 2026, the apex court ruled in VVC v JRM and Others, a matter arising from a divorce dispute between spouses who were initially married under customary law before later concluding a civil marriage.
According to the court’s media summary, the case originated in the Gauteng High Court in Pretoria, which had declared section 10(2) of the Recognition of Customary Marriages Act 120 of 1998 unconstitutional. The High Court held that the provision allowed spouses married under customary law to alter their matrimonial property regime “by mere written agreement and without judicial oversight”.
The Constitutional Court explained that the parties were married under customary law in August 2011 and later entered into a civil marriage in 2021, after signing an antenuptial contract (ANC) in 2019. The ANC stipulated that the civil marriage would be out of community of property and subject to the accrual system.
When divorce proceedings were instituted in 2022, both the validity of the ANC and the constitutionality of section 10(2) came under scrutiny. The applicant argued that the provision enabled an arbitrary deprivation of property and unfair discrimination, particularly against women married under customary law.
The applicant further contended that section 10(2) breached constitutional property and equality rights because it allowed spouses “to change their matrimonial property regime without the intervention or oversight of a court, to the prejudice of the economically weaker spouse”.
Media Summary : CCT 202/24 VVC v JRM and Others. pic.twitter.com/KGM4EQL47F
— Constitutional Court (@ConCourtSA) January 21, 2026
However, the Constitutional Court disagreed with the High Court’s interpretation of the impugned provision. In the majority judgment, the court found that section 10(2), properly interpreted, does not allow spouses to change their matrimonial property regime outside judicial supervision.
“Properly interpreted, section 10(2) simply confirms that a civil marriage concluded after a customary marriage will be in community of property unless there is an ANC that validly regulates the matrimonial property system of the marriage,” the court stated.
The judgment further clarified that a customary marriage does not automatically terminate upon the conclusion of a civil marriage. Rather, the court held that the marriage relationship is continuous, explaining that it “began as a customary marriage and later became governed by civil law upon the conclusion of a civil marriage”.
On this interpretation, the court found that any attempt to change the matrimonial property regime during the subsistence of the marriage would still require compliance with section 21 of the Matrimonial Property Act, which mandates court approval.
[WATCH] The Constitutional Court has overturned a Pretoria High Court ruling that found part of the law on customary marriages unconstitutional. In a unanimous judgment delivered by Justice Steven Majiedt, the court upheld the constitutional validity of the Recognition of… pic.twitter.com/j1RqWzkFFx
— Newzroom Afrika (@Newzroom405) January 21, 2026
As a result, the court concluded that the constitutional concerns identified by the High Court did not arise. “Section 10(2), properly interpreted, did not permit a change in matrimonial property regime without judicial oversight,” the court held.
The Constitutional Court therefore declined to confirm the High Court’s declaration of constitutional invalidity and made no order as to costs.
A dissenting judgment authored by Rogers J took a different view, arguing that section 10(2) was intended to regulate the proprietary consequences of a civil marriage following a customary marriage, and that the majority’s interpretation rendered the provision redundant. This view, however, did not prevail.
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Compiled by Lisabeal Nqamqhele
