All About Property | Property rights alert: Does the ConCourt ruling impact your marriage?

In a seminal and highly publicised ruling, the Constitutional Court recently confirmed a critical legal principle directly impacting married couples’ property rights: Once married, you cannot change your matrimonial property regime by private agreement alone. Instead, a court application under section 21 of the Matrimonial Property Act is mandatory.

The facts of the case

In VVC v JRM and Others, VVC and JRM were married in terms of customary law in 2011. By default, the marriage operated in community of property, per the Recognition of Customary Marriages Act (‘the RMCA’). In 2019, anticipating their later civil marriage, they concluded an antenuptial contract – electing an out-of-community regime with the accrual system. In 2021, they celebrated a civil marriage. Later, the marriage broke down and upon divorce, JRM sought to enforce the antenuptial contract, while VVC challenged its validity.

In a special stated case, the High Court held that:

The ANC was a postnuptial contract that could not alter the couple’s matrimonial property regime without judicial oversight under section 21 of the Matrimonial Property Act (‘the MPA’).
Section 10(2) of the RMCA was unconstitutional as it permitted marital regime change without oversight, which may invariably lead to the arbitrary deprivation of property and discrimination against economically weaker spouses.
The matter was subsequently referred to the Constitutional Court for confirmation of constitutional invalidity.

What did the ConCourt rule?

In a significant ruling, the ConCourt was tasked with assessing whether their antenuptial contract had lawfully changed the parties’ matrimonial property regime. On an evaluation of the facts and prevailing law, the Court held that the ANC, which was signed after the conclusion of the customary marriage, was invalid and thus unenforceable. Accordingly, the parties’ marriage remained in community of property.

Importantly, the ConCourt confirmed that once a marriage exists, spouses cannot change their matrimonial property regime simply by signing an agreement between themselves — even if both consent and the contract is formally drafted.

Instead, section 21 of the MPA, which also applies to customary law marriages, provides the only lawful mechanism for properly altering a matrimonial property system – through the creation of a postnuptial agreement – during marriage.

Why section 21 of the MPA is central

Section 21 of the MPA permits spouses who are already married, whether under customary or civil law, to amend their matrimonial regime. A formal process, it requires spouses to apply jointly to the High Court, which must be satisfied that there are sound reasons for the requested alteration. To that end, the parties must fully disclose their financial position by detailing their assets and liabilities, indicating whether or not they have been sequestrated, and specifying whether there is pending litigation against either of them by a creditor.

In addition, they are required to furnish all creditors with sufficient notice of the proposed change. A copy of the postnuptial contract, which is prepared by an attorney and confirms that the rights of any creditors will not be adversely affected, must be attached to the application.

Significantly, the Constitutional Court made it clear that this judicial mechanism operates to protect spouses from unintended loss of property rights, prevent the exploitation of economically weaker spouses, and ensure transparency where creditors are involved.

Why the ruling matters for married couples

The judgment has lasting consequences for spouses planning their financial futures, and particularly those who own property.

For instance, a spouse who understood their marriage to be out of community of property and managed their financial affairs accordingly could face severe and unforeseen repercussions. They may suddenly be exposed to liability for half of the other spouse’s debts incurred during the marriage. Assets they regarded as exclusively theirs may instead form part of the joint estate, subject to equal division on divorce or death. In extreme cases, they could even face sequestration proceedings arising from obligations of which they had no prior knowledge.

How an attorney can help

In this context, a family law attorney plays a crucial role in helping spouses to:

Understand the legal consequences of their matrimonial property regime;
Assess whether existing agreements are valid and enforceable;
Advise whether a section 21 application is required;
Prepare and manage the court process efficiently; and
Ensure that any change to their property regime is legally sound and fair.
Early advice is particularly imperative for couples in customary marriages, those contemplating significant financial decisions, and those who have accumulated sizable assets during the marriage.

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