Key Takeaways
- The Constitutional Court (ConCourt) has ruled that antenuptial contracts concluded after a customary marriage are legally valid.
- The Recognition of Customary Marriages Act treats customary marriages and civil marriages as legally equal.
- Couples can change their matrimonial property regime at any stage during their marriage, with appropriate safeguards for creditors and vulnerable spouses.
- The ConCourt’s decision has broader implications for couples across South Africa, including the high-profile divorce case involving DJ Black Coffee and actress Enhle Mbali Mlotshwa.
Introduction to the Case
The Constitutional Court (ConCourt) has delivered a landmark judgment, bringing clarity to the legal position governing matrimonial property regimes where couples enter into both customary and civil marriages. The case involved a couple, J.R.M and V.V.C, who entered into a customary marriage in 2011, followed by a civil marriage in 2021. The couple had signed an antenuptial contract in 2019, which stipulated that their civil marriage would be out of community of property, subject to the accrual system. However, the relationship deteriorated, and the couple sought to dissolve their marriage.
Origins of the Dispute
The dispute arose when the couple entered into a customary marriage in 2011, without an antenuptial contract. As a result, their marriage was in community of property, with both spouses acquiring equal, undivided shares in their joint estate. Several years later, the couple signed an antenuptial contract, which was intended to govern their future civil marriage. The contract stipulated that their civil marriage would be out of community of property, subject to the accrual system. The civil marriage was eventually concluded in 2021, but the relationship subsequently deteriorated, and the couple sought to dissolve their marriage.
Constitutional Challenge
The couple’s case took a turn when J.R.M contended that it had always been the mutual intention of the parties for their marriage to be out of community of property and governed by the accrual system. A constitutional challenge against Section 10(2) of the Recognition of Customary Marriages Act was later launched. The section provides that when spouses to an existing customary marriage conclude a civil marriage, their matrimonial property regime remains in community of property unless an antenuptial contract provides otherwise. V.V.C argued that the effect of the section caused her to lose ownership rights over assets registered in her husband’s name, despite those assets forming part of the joint estate created by the customary marriage.
Gauteng High Court Ruling
In June 2024, the Gauteng High Court in Pretoria ruled in favor of V.V.C and declared the 2019 antenuptial contract "invalid and unenforceable." The court also found that Section 10(2) of the Act was inconsistent with Section 9(1) of the Constitution because it allows spouses to change their matrimonial property system after a customary marriage without court oversight. The court ruled that the provision conflicts with section 25(1) of the Constitution, as it can unfairly strip financially weaker spouses of their ownership rights. The declaration of invalidity was suspended for 12 months to allow Parliament an opportunity to address the constitutional defect, subject to confirmation by the ConCourt.
ConCourt Judgment
On Wednesday, the ConCourt refused to uphold the high court’s declaration that Section 10(2) was invalid. The court emphasized that the Recognition of Customary Marriages Act treats customary marriages and civil marriages as legally equal. Entering into a civil marriage after a customary one does not bring the customary marriage to an end. Instead, the civil marriage absorbs the customary marriage, resulting in a single legal union governed by civil law. The ConCourt held that Section 10(2), in its current form, confirms that a civil marriage concluded after a customary marriage remains in community of property, unless the parties lawfully change that position.
Implications
The ConCourt’s outcome could have broader implications for couples across South Africa, including the high-profile divorce case involving DJ Black Coffee and actress Enhle Mbali Mlotshwa. In October 2025, the Gauteng High Court in Johannesburg ruled that the couple’s customary marriage, entered into in May 2011, was valid and in community of property. The court set aside their civil marriage concluded in January 2017, which had the effect of nullifying their December 2016 antenuptial agreement. The court ordered that the couple’s joint estate be divided equally, and Maphumulo was further ordered to pay spousal maintenance and child support. The DJ has since lodged an appeal with the Supreme Court of Appeal (SCA). The ConCourt’s decision is likely to have a significant impact on the outcome of this case and others like it, as it clarifies the legal position governing matrimonial property regimes where couples enter into both customary and civil marriages.