FROM A DIVORCE DISPUTE TO A CONSTITUTIONAL QUESTION

WHAT THE CONSTITUTIONAL COURT SETTLED IN JANUARY 2026

On 21 January 2026, the Constitutional Court handed down a landmark judgment clarifying one of the most uncertain areas of South African family law: what happens to a customary marriage and its property consequences when spouses later conclude a civil marriage with each other.

The case arose from an ordinary divorce. Its implications, however, are anything but ordinary.

FACTS OF THE MATTER

The matter began as an opposed divorce between two spouses who were married by customary law in 2011. Years later, in 2019, they decided to formalise their relationship through a civil marriage. Before doing so, they signed an antenuptial contract (ANC) stating that the civil marriage would be out of community of property with accrual.

What they did not do was divide the joint estate that had come into existence under their customary marriage.

When divorce proceedings followed in 2022, the ANC became the battleground.

One spouse argued that: the ANC was invalid; or if valid, then section 10(2) of the Recognition of Customary Marriages Act was unconstitutional because it allowed spouses to change their matrimonial property regime without court oversight.

The High Court agreed — and went further.

THE HIGH COURT’S FINDING: UNCONSTITUTIONAL

The High Court found that:

The ANC was invalid, as it was effectively a postnuptial contract concluded without compliance with section 21 of the Matrimonial Property Act.

The Court further went on and held that section 10(2) of the Recognition Act is unconstitutional, because it allowed spouses in customary marriages to alter their property regime without judicial oversight, resulting in arbitrary deprivation of property, unfair discrimination particularly against women married under customary law.

The declaration of invalidity was suspended for 12 months and referred to the Constitutional Court for confirmation.

THE CENTRAL QUESTION BEFORE THE CONSTITUTIONAL COURT

Does a customary marriage end when the spouses later conclude a civil marriage with each other — or does the marriage continue as one, with only the legal system governing it changing?

The answer would determine: (1) whether a new ANC could validly be concluded and (2) whether section 10(2) was constitutionally sound.

THE MAJORITY JUDGMENT: ONE MARRIAGE, CONTINUOUS PROTECTION

In a majority judgment the Constitutional Court declined to confirm the High Court’s declaration of constitutional invalidity.

The Court held one marriage not two in that a customary marriage does not terminate when spouses later conclude a civil marriage. Instead, the customary marriage is subsumed into the civil marriage and there is one continuous marriage not a termination and a recreation of marital status.

A customary marriage can only end through death or divorce, not by conversion to a civil marriage.

SECTION 10 CHANGES THE SYSTEM — NOT THE PROPERTY REGIME

The Court clarified that Section 10 of the Recognition Act regulates a change in marriage system, not a change in the matrimonial property regime.

Any change to the property system must occur under section 21 of the Matrimonial Property Act which requires judicial oversight to protect creditors and economically vulnerable spouses.

WHY THE ANC FAILED

An Antenuptial contract, by definition, must be concluded before the marriage. Because the spouses were already married under customary law, the 2019 agreement was postnuptial, and therefore invalid without court approval.

WHY SECTION 10(2) SURVIVES

Upon a proper interpretation of section 10(2) , it does not permit spouses to change their property regime without court oversight, does not create a back door around section 21 of the Matrimonial Property Act and therefore raises no constitutional defect so to called.

The Constitutional Court accordingly refused to confirm the High Court’s finding of invalidity.

In the dissenting judgment the Court adopted a different interpretation: section 10(2) was seen as allowing an ANC concluded before the civil marriage, even if after the customary marriage, putting an emphasis on contractual autonomy and practical flexibility. However, even on this interpretation section 10 (2) was not unconstitutional and the High Courts finding still should not be confirmed.

The dissent would have found the ANC valid — but since no appeal was lodged against the High Court’s finding of invalidity, that ruling stood regardless.

WHY THIS JUDGMENT MATTERS

This decision provides long-awaited clarity and has immediate practical consequences:

• Customary marriages are fully protected — they do not vanish upon civil conversion.

• Property regimes cannot be changed informally — judicial oversight remains essential.

• ANCs cannot be used retrospectively to rewrite existing marital property consequences.

• Women in customary marriages retain constitutional protection through community of property and court supervision.

Most importantly, the judgment reinforces the transformative purpose of the Recognition Act: to place customary marriages on an equal footing with civil marriages, not in a position of lesser protection.

THE BOTTOM LINE

If spouses wish to change their matrimonial property regime after entering into a customary marriage, they must approach the court under section 21 of the Matrimonial Property Act. There are no shortcuts.

The Constitutional Court has made it clear: customary marriages are not treated as lesser marriages, and their legal and proprietary consequences cannot be altered without proper safeguards.

For more information and professional legal advice, contact Zandelee de Swardt, Senior Associate in our Litigation Dept at Goldberg & de Villiers Inc. on 041-5019800 | zandelee@goldlaw.co.za