Changing Your Marriage Regime After A Customary Marriage

Couples often make decisions about their marriage regime for sensible reasons. They may be planning a business venture, buying property, protecting children from a prior relationship, or simply trying to manage risk more carefully. In practice, many assume that signing an antenuptial contract (ANC) later will "update" their marital position.

In VVC v JRM and Others [2026] ZACC 2, the Constitutional Court dealt with precisely that kind of assumption. The case arose in divorce proceedings after spouses concluded a customary marriage in community of property and, years later, signed an ANC when they decided to conclude a civil marriage. The High Court found the later ANC invalid and went further by declaring section 10(2) of the Recognition of Customary Marriages Act unconstitutional. The Constitutional Court did not confirm the High Court's constitutional invalidity order.

For families, the key takeaway is straightforward. If you want to change your matrimonial property regime after a marriage has already been concluded, you should not rely on informal shortcuts. If the process is not followed correctly, a court may later conclude that you remained married in community of property all along, despite what you believed.

What happened in the case

The parties concluded a customary marriage 'in community of property'. Eight years later, they signed an ANC in contemplation of concluding a civil marriage. The civil marriage followed later, without the joint estate created by the customary marriage being divided. Divorce proceedings later triggered a dispute about whether the ANC had changed the regime.

That sequence matters. When couples make decisions about property regimes, they often do so expecting certainty. Divorce and death are the moments when certainty is tested, and this case shows how quickly assumptions can unravel.

What the Constitutional Court decided, in practical terms

The Constitutional Court's order was focused on the High Court's constitutional declaration. It declined to confirm that section 10(2) is unconstitutional.

Within the judgments, there were different approaches to interpreting section 10(2) and how it interacts with the Matrimonial Property Act. But the immediate consequence for the parties in this case was that the divorce trial would proceed on the basis that the later ANC was not enforceable.

That result is the practical warning for couples. Even if you believe you have "fixed" the position, a later challenge may reveal that your marriage remained in community of property, with all the consequences that follow.

Practical Implications for divorce, estates, and financial planning

1) Community of property has real consequences

If you are in community of property, there is a joint estate. Assets and liabilities acquired during the marriage generally fall into that joint estate. In divorce, the starting point is division of the joint estate, subject to claims and adjustments that may apply.

If a spouse has acted for years on the belief that they were out of community of property, it can be a shock to discover that the joint estate still exists.

2) A later ANC is not a reliable "fix" for an existing marriage

Where a marriage has already been concluded, changing the matrimonial property regime is not merely administrative. A later contract that attempts to change accrued proprietary rights may be attacked, particularly where the correct legal pathway was not followed.

For clients, the safest advice is to treat "we signed an ANC later" as a cue to get proper legal confirmation that the regime has in fact changed.

3) The protective purpose is not only about the spouses

A change in matrimonial property regime can affect third parties. It can affect creditors, and it can affect what can be done with property and other assets. That is one reason the law treats regime changes differently from first-time choices made before marriage.

4) Estate planning must match the true regime

Wills, beneficiary planning, and business succession arrangements are often drafted on assumptions about what sits in each spouse's estate. If the marriage is in community of property, that affects what can be bequeathed and how estates are administered.

5) If you want to change the regime, do it early and do it properly

If you are considering moving from in community of property to out of community of property, obtain advice on the correct process for your circumstances. A clean, compliant process now is far better than litigating later when the stakes are higher.

Your "next steps" checklist

If you are considering changing your matrimonial property regime, or you already signed documents and want certainty, start with these steps:

• " Confirm what marriage exists and when it began (customary and/or civil, and in what order).
• " Confirm whether the customary marriage was ever excluded from community of property by a valid ANC.
• " If a later ANC was signed, get advice on whether it validly changed anything for your specific circumstances.
• " Align your planning (property purchases, business arrangements, wills, and estate plans) with the confirmed position.

Closing note

This judgment is a reminder that marital property consequences are not something you can safely "tidy up later" without proper guidance. If you are considering changing your marriage regime, do it with certainty, because uncertainty only becomes visible when families are under pressure.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.