By Lehlohonolo Lehana.
The Constitutional Court has declined to confirm an order of constitutional invalidity made by the High Court which declared section 10(2) of the Recognition of Customary Marriages Act 120 of 1998 unconstitutional.
The High Court order had declared a section of the Recognition of Customary Marriages Act unconstitutional and invalid.
The case involved a couple identified as J.R.M (plaintiff) and V.V.C (defendant), who entered into a customary marriage on 5 August 2011.
At the time of their marriage, no antenuptial contract was concluded.
This resulted in the marriage being in community of property, with both spouses acquiring equal, undivided shares in their “joint estate”.
Years later, on 19 February 2019, the couple signed an antenuptial contract.
The document stipulated that a civil marriage they intended to conclude in the future would be out of community of property, subject to the accrual system.
The civil marriage was eventually concluded on 10 June 2021.
The relationship subsequently deteriorated, with both parties stating that the marriage had irretrievably broken down and could not be restored.
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.
Section 10(2) 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.
However, V.V.C argued that the effect of the Section 10(2) 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.
In June 2024, the Gauteng High Court in Pretoria ruled in favour 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 Constitution because it allows spouses to change their matrimonial property system after a customary marriage without court oversight.
In addition, 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.
On Wednesday, In a majority judgment written by Justice Steven Majiedt, Constitutional Court rejected the high court’s interpretation and declined to confirm its order.
In explaining its decision, Majiedt emphasised that the Recognition of Customary Marriages Act treats customary marriages and civil marriages as legally equal.
So, 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 judgment reads.
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.