The Constitutional Court has overturned a Pretoria High Court ruling that declared part of the Recognition of Customary Marriages Act unconstitutional, bringing clarity to how property is regulated when couples move from customary to civil marriage.
In a judgment handed down on Wednesday, the court declined to confirm the high court’s order striking down Section 10(2) of the act, which governs civil marriages entered into by spouses already married under customary law.
The case arose from a divorce dispute between a couple who entered into a customary marriage in 2011 and later concluded a civil marriage in 2021.
Before registering their civil marriage, the couple signed an antenuptial contract (ANC), agreeing that their marriage would be out of community of property with accrual.
When the marriage broke down in 2022, the husband sought to enforce the ANC.
The wife challenged its validity, arguing that the agreement unlawfully changed their matrimonial property regime without court approval.
Section 10(2) of the Recognition of Customary Marriages Act allowed spouses to alter their property regime “by private agreement alone”, without judicial oversight, a situation she said unfairly disadvantaged economically vulnerable spouses, particularly black women.
The Pretoria High Court agreed with the wife and declared Section 10(2) unconstitutional.
It found that the provision exposed women in customary marriages to unfair discrimination and arbitrary deprivation of property and suspended the declaration of invalidity for 12 months to allow parliament to intervene.
That ruling was automatically referred to the Constitutional Court for confirmation.
High court’s interpretation rejected
In a majority judgment written by Justice Rammaka Mathopo Majiedt, the Constitutional Court rejected the high court’s interpretation and declined to confirm its order.
The court stressed that the Recognition of Customary Marriages Act was enacted to remedy historical inequality and place customary marriages on an equal footing with civil marriages.
“The act must be interpreted purposively, in a manner that advances constitutional values and protects spouses, particularly women,” the court said.
Central to the court’s reasoning was the finding that customary marriages concluded after the act came into force are governed by Section 21 of the Matrimonial Property Act.
This provision requires court approval for any change to a matrimonial property system.
“The law does not permit spouses to alter their matrimonial property regime without judicial oversight,” the court held.
The court also rejected the argument that a customary marriage automatically ends when spouses later conclude a civil marriage.
Instead, it held that the civil marriage subsumes the customary marriage, meaning the marriage relationship continues as a single, uninterrupted union governed by civil law.
“The conclusion of a civil marriage does not terminate the customary marriage,” the judgment states.
“It results in a change to the legal regime governing an existing marriage, not the creation of a new one.”
As a result, any attempt to change the matrimonial property regime must comply with Section 21 of the Matrimonial Property Act, which requires court supervision to safeguard both spouses and creditors.
Contract found to be invalid
The court found that the antenuptial contract signed by the couple was invalid, as it was concluded without complying with the statutory requirement for court approval.
However, because the Constitutional Court declined to confirm the high court’s declaration of invalidity, the broader constitutional challenge to Section 10(2) fell away.
In a dissenting judgment authored by Justice Rogers, with Judges Madlanga and Opperman concurring, the minority took a different view.
They argued that Section 10(2) permits spouses to regulate their property consequences through an ANC concluded before the civil marriage and that this interpretation better respects contractual autonomy.
Justice Rogers said the majority’s interpretation “sets at naught the spouses’ expressed wishes” and forces couples to incur the cost and burden of court applications.
Nevertheless, even the dissent agreed that the high court’s declaration of constitutional invalidity should not stand.
The judgment confirms that couples married under customary law cannot privately change their property regime when entering a civil marriage.
Any such change requires court approval, reinforcing legal safeguards aimed at protecting vulnerable spouses, especially women, from exploitation during marital transitions.
The Constitutional Court made no order as to costs.
