VVC v JRM and Others [2026] ZACC 2

Introduction

In VVC v JRM and Others, the Constitutional Court of South Africa was called upon to confirm an order of constitutional invalidity granted by the High Court in respect of section 10(2) of the Recognition of Customary Marriages Act 120 of 1998.

At the heart of the dispute lay a deceptively technical but constitutionally loaded question: can spouses married under customary law alter their matrimonial property regime by concluding an antenuptial contract (ANC) after the customary marriage but before a subsequent civil marriage, without judicial oversight?

The Court unanimously declined to confirm the High Court’s declaration of constitutional invalidity. However, it did so on sharply divided reasoning, producing a significant majority judgment (Majiedt J) and a detailed dissent (Rogers J). The decision has far-reaching implications for customary marriages, matrimonial property regimes, gender equality, and legal certainty.

Factual Background

The parties concluded a monogamous customary marriage in 2011, which, by operation of section 7(2) of the Recognition Act, was in community of property. In 2019, they executed an ANC excluding community of property and incorporating accrual, and in 2021 they concluded a civil marriage with each other, without dissolving the customary marriage or dividing the joint estate.

Upon divorce, the validity of the ANC and the constitutionality of section 10(2) were placed in issue. The High Court held that the ANC was invalid and that section 10(2) was unconstitutional for permitting a change in matrimonial property regime without judicial oversight, thereby infringing sections 9 and 25 of the Constitution.

The Constitutional Court’s Central Issues

The Constitutional Court identified four interrelated questions:

1. Was the ANC valid?
2. How should section 10(2) be interpreted?
3. Does section 10(2), properly interpreted, permit unconstitutional deprivation of property or unfair discrimination?
4. If unconstitutional, what remedy is appropriate?

Crucially, the Court emphasised that the constitutional challenge only arose if the ANC was valid.

The Majority Judgment (Majiedt J): Interpretation Before Constitutionality

• One Continuous Marriage, Not Two

The majority held that a customary marriage is not terminated by the subsequent civil marriage. Instead, section 10 allows a change of marriage system, not a dissolution of the marriage relationship. Termination can occur only through divorce or death under section 8 of the Recognition Act.

This finding rejected historical assumptions that civil marriage automatically “supersedes” customary marriage, a position rooted in apartheid-era hierarchies that the Recognition Act was enacted to dismantle.

• Antenuptial Contracts Mean What They Say

A core plank of the majority’s reasoning was conceptual precision:

• An antenuptial contract must be concluded before the marriage comes into existence.
• Once a customary marriage exists, any later agreement altering matrimonial property consequences is postnuptial, and therefore subject to judicial oversight under section 21 of the Matrimonial Property Act.

On this interpretation, section 10(2) does not authorise post-customary, pre-civil ANCs. It merely confirms that the civil marriage continues under the same proprietary regime unless that regime was lawfully altered through a court-sanctioned process.

• No Constitutional Defect

Because section 10(2), properly interpreted, does not permit extra-judicial alteration of matrimonial property, it does not authorise arbitrary deprivation of property or unfair discrimination. The High Court therefore erred in reaching the constitutional question at all.

The ANC was invalid, not because section 10(2) was unconstitutional, but because the parties failed to comply with section 21 of the Matrimonial Property Act.

The Dissent (Rogers J): Dual Character, Contractual Autonomy

Rogers J advanced a markedly different interpretation. In his view:

• A marriage following a customary marriage may possess a dual customary, civil character.
• Section 10(2) contemplates that spouses may conclude an ANC after the customary marriage but before the civil marriage, regulating the proprietary consequences of the civil marriage prospectively.
• Any joint estate created under the customary marriage either continues alongside separate estates or is regulated by the ANC, without prejudice to creditors.

The dissent rejected the idea that judicial oversight is constitutionally required in this context, stressing contractual autonomy and warning against retroactively unsettling countless registered ANCs relied upon in practice.

Equality, Gender, and Judicial Oversight

The majority judgment is firmly anchored in the transformative purpose of the Recognition Act and prior Constitutional Court jurisprudence (Gumede, Ramuhovhi, Sithole). It underscores that:

• Customary marriages must enjoy equal dignity and legal status.
• Judicial oversight in altering matrimonial property regimes is not a technicality, but a protective mechanism, particularly for economically vulnerable spouses, predominantly black women.

Allowing informal contractual changes, the majority warned, would recreate precisely the structural disadvantages the Recognition Act was designed to remedy.

Outcome and Practical Implications

The Court held:

• The ANC was invalid for non-compliance with section 21 of the Matrimonial Property Act.
• The High Court’s declaration that section 10(2) is unconstitutional was not confirmed.
• The parties remain married in community of property.
• No order as to costs was made.

Practical consequences:

• Practitioners must treat post-customary, pre-civil ANCs with extreme caution.
• Any change to the matrimonial property regime of a customary marriage requires judicial oversight, even if a civil marriage is contemplated.
• The decision strengthens gender-protective safeguards but raises concerns about the validity of past transactions, an issue the dissent highlighted but the majority left unresolved.

Conclusion

VVC v JRM is a landmark decision that prioritises constitutional transformation over contractual convenience. By insisting on conceptual clarity, judicial oversight, and equality of marriage systems, the Constitutional Court reaffirmed that customary marriages are not provisional arrangements awaiting “formalisation”, but fully recognised marriages with enduring legal consequences.

The judgment will likely shape future legislative reform, particularly as the South African Law Reform Commission revisits matrimonial property law. For now, it stands as a powerful reminder that private ordering in family law remains subject to constitutional discipline.