When a property is sold, most people expect the difficult questions to concern the purchase price, bond approval, transfer costs, municipal clearance figures or the date of occupation.
Sometimes the issue that causes the greatest difficulty began years before the property was placed on the market: the seller’s marriage.
A judgment handed down by the Constitutional Court on 21 January 2026 has made that particularly clear. In VVC v JRM and Others (CCT202/24) [2026] ZACC 2; 2026 (3) BCLR 234 (CC) (21 January 2026) (“VVC v JRM”), the Court considered the legal consequences of a customary marriage followed years later by an antenuptial contract and then a civil marriage.
Although the dispute arose in divorce proceedings rather than from a conveyancing transaction, the majority judgment has immediate practical significance for property law. A person’s matrimonial property regime can determine whether property forms part of a joint estate, whether a spouse’s consent is necessary for a sale or mortgage and whether an agreement said to regulate the marriage is legally effective.
The case is therefore an important reminder that marital status is not merely a box to tick on a conveyancing questionnaire. The complete marital history may matter.
The legal framework: customary marriage and matrimonial property
The starting point is the Recognition of Customary Marriages Act 120 of 1998 (“the Recognition Act”).
For a customary marriage concluded after the commencement of the Act, section 7 regulates its proprietary consequences. In the circumstances contemplated by section 7(2), a monogamous customary marriage brings about community of property and of profit and loss unless those consequences are validly excluded by an antenuptial contract regulating the matrimonial property system.
This matters because a customary marriage does not become legally unimportant simply because it was not registered. Section 4(9) of the Recognition Act expressly provides that failure to register a customary marriage does not affect the validity of that marriage. Registration is important evidence of the marriage and should be attended to, but the absence of a registration certificate is not, by itself, proof that no valid customary marriage exists.
The second important statute is the Matrimonial Property Act 88 of 1984 (“the MPA”). Where spouses are married in community of property, section 15 regulates their powers in relation to the joint estate.
Section 15(2)(a) provides, among other things, that a spouse may not without the written consent of the other spouse alienate, mortgage or otherwise confer specified real rights in immovable property forming part of the joint estate. Section 15(2)(b) similarly deals with entering into contracts for the alienation or mortgaging of such immovable property.
That makes the matrimonial property regime directly relevant to conveyancing.
What happened in VVC v JRM?
The parties in VVC v JRM entered into a customary marriage in August 2011. That marriage created a joint estate.
In 2019, while the customary marriage already existed, the parties signed an antenuptial contract. The agreement contemplated that when they subsequently entered into a civil marriage, they would be married out of community of property and subject to the accrual system.
They then concluded a civil marriage in 2021, without first dividing the joint estate that had arisen from the customary marriage. Divorce proceedings followed in 2022, and the legal effect of the 2019 ANC became a central issue.
The dispute first came before the Gauteng Division of the High Court, Pretoria, in J.R.M v V.V.C and Others (25007/2022) [2024] ZAGPPHC 547; [2024] 3 All SA 853 (GP) (10 June 2024). The High Court held that an ANC entered into after the customary marriage had already commenced could not validly change the parties’ existing matrimonial property regime without compliance with section 21 of the MPA.
The High Court went further. It declared section 10(2) of the Recognition Act constitutionally invalid and suspended that declaration for 12 months, with a proposed reading-in if Parliament did not correct the perceived defect.
Because an order declaring legislation unconstitutional has to be confirmed by the Constitutional Court before it becomes effective, the matter proceeded to the Constitutional Court.
That procedural step is important because the Constitutional Court ultimately did not confirm the High Court’s declaration of constitutional invalidity.
What the Constitutional Court actually decided
The majority judgment, written by Majiedt J, approached section 10(2) differently.
The Court held that section 7(5) of the Recognition Act makes section 21 of the MPA applicable to the type of customary marriage before it. Section 21 provides a formal, court-supervised mechanism through which spouses can change the matrimonial property system applying to an existing marriage.
Under section 21(1) of the MPA, the spouses apply jointly to court. Among the matters the court must consider are whether there are sound reasons for the proposed change, whether sufficient notice has been given to creditors and whether another person will be prejudiced. If the requirements are satisfied, the court may authorise the spouses to enter into a notarial contract regulating their future matrimonial property system.
In other words, once the marriage already exists, spouses cannot simply create an ANC between themselves and assume that it retrospectively or prospectively changes the matrimonial property consequences of that existing marriage.
The Constitutional Court majority also rejected the idea that the later civil ceremony simply terminated the customary marriage and created a completely new marriage with a new legal starting date.
Instead, the Court held that the parties had one continuous marriage. The marriage began as a customary marriage and, when the parties subsequently married each other under civil law, the civil marriage subsumed the customary marriage rather than destroying the marriage relationship and replacing it with an entirely unrelated one.
On the majority’s interpretation, section 10(2) does not provide spouses with an alternative route to escape the court-supervised procedure in section 21 of the MPA. A later civil marriage will be in community of property unless there is already an ANC that validly regulates the matrimonial property regime of the marriage.
Because the parties’ 2019 ANC had been concluded after their customary marriage had already come into existence and the section 21 process had not been followed, the ANC was invalid.
The majority therefore concluded that section 10(2), properly interpreted, was not unconstitutional. The Constitutional Court declined to confirm the High Court’s declaration of invalidity.
There was a dissenting judgment that took a different interpretive approach to section 10(2). However, the majority judgment is the controlling decision and establishes the position relevant to the parties and to subsequent application of the law.
Why does a matrimonial-property judgment matter to a property transfer?
The answer lies in the joint estate.
Suppose a seller produces a title deed showing a property registered in his or her name and tells the estate agent or conveyancer: “I am married out of community of property. Here is my ANC.”
That may appear to resolve the issue.
But imagine that the ANC was signed in 2019 and the seller had already entered into a valid customary marriage in 2011. VVC v JRM demonstrates why the existence of the later ANC cannot simply be accepted as proof that the earlier matrimonial regime was validly changed.
If the marriage remained in community of property, and the immovable property forms part of the joint estate, section 15 of the MPA becomes highly relevant. Written spousal consent may be required for the alienation or mortgage of the immovable property and for contracts dealing with such alienation or mortgage.
The registered owner’s name on the title deed therefore does not necessarily answer every matrimonial-property question.
This does not mean that every uncertainty about marital status automatically makes a property sale invalid or permanently prevents transfer. The consequences depend on the facts, the applicable matrimonial regime, the property concerned, the transaction and whether legally required consent or other corrective steps can be obtained.
It does mean that an incorrect assumption can cause serious problems if it is discovered late.
A conveyancer may have to investigate the marital history, request additional documents, determine whether a customary marriage existed, establish whether an ANC preceded or followed that marriage, determine whether a section 21 court order was ever obtained and ascertain whether another spouse must participate in or consent to the transaction.
The same questions can matter when a mortgage bond is registered because section 15(2)(a) expressly includes the mortgaging of immovable property forming part of a joint estate.
An unregistered customary marriage can still matter
This is perhaps one of the most important practical lessons for property professionals.
A person may answer “single” or “married by civil law” because an earlier customary marriage was never formally registered with Home Affairs. That answer may be legally incomplete.
Section 4(9) of the Recognition Act is explicit that failure to register a customary marriage does not affect its validity. The real enquiry is therefore whether a valid customary marriage was concluded, not merely whether a marriage certificate appears on the file.
For a customary marriage entered into after the Recognition Act came into operation, questions concerning consent and whether the marriage was negotiated and entered into or celebrated in accordance with customary law may therefore become significant.
This is why a conveyancer may sometimes need more than an ID document, marriage certificate or ANC. The chronology can be decisive.
Timing is everything when it comes to an ANC
An antenuptial contract is designed, as its name suggests, to regulate the matrimonial property consequences before the relevant marriage comes into existence.
Where parties want to exclude community of property from the outset, the ANC should be concluded at the appropriate time and comply with the applicable legal and registration requirements.
Once spouses are already married under a matrimonial regime, changing that regime is fundamentally different.
Section 21 of the MPA exists because changing a matrimonial property system can affect more people than the spouses themselves. Creditors may have extended credit on the strength of the existing regime. Property may already have been acquired. Debts may already exist. One spouse may be exposed to prejudice if valuable rights in a joint estate are altered without proper scrutiny.
That is why VVC v JRM is more than a technical case about the date on which an ANC was signed. It confirms the importance of judicial oversight when an existing matrimonial property regime is changed.
What should sellers, buyers and property professionals establish?
A property transaction should ideally identify matrimonial issues at the beginning rather than immediately before lodgement.
A seller should disclose any previous or existing customary marriage, even if it was never registered; the approximate date on which it was concluded; whether an ANC exists and when it was signed; whether a civil marriage followed later; whether a court ever authorised a change to the matrimonial property system; and whether there has been a divorce or other court order affecting the position.
For estate agents, the lesson is not that they must become matrimonial-law specialists. It is that the question “Are you married?” may sometimes be insufficient.
Where a client gives information indicating an earlier customary marriage, a later ANC, a subsequent civil ceremony or uncertainty about the legal marital status, the issue should be flagged for the conveyancer rather than resolved through assumption.
Buyers also have an interest in the issue being identified early. A buyer needs certainty that the seller has the necessary capacity and authority to conclude and perform the transaction. A dispute over a required spouse’s consent can affect timelines, bond arrangements, occupation dates and the ability to proceed smoothly to registration.
Lenders and bond attorneys similarly need the correct matrimonial information where immovable property is to be mortgaged.
A few questions at the beginning of the transaction may therefore prevent weeks or months of difficulty later.
Property law does not operate in isolation
VVC v JRM illustrates how a property transaction can intersect with customary law, matrimonial property law, family law, contract law, banking law and conveyancing.
The event that causes difficulty during a transfer may have occurred many years before the sale: a customary marriage that was never registered, an ANC signed after the marriage had already begun, or a later civil ceremony that the spouses incorrectly believed reset their matrimonial position.
Those facts can affect present-day property rights.
For that reason, legal due diligence should focus not only on what a document is called, but on when it was signed, what legal relationship already existed at that time and whether the correct procedure was followed.
Conclusion: check the marriage before the property transaction becomes complicated
The Constitutional Court’s judgment in VVC v JRM sends a clear message: a valid customary marriage cannot simply be treated as legally irrelevant because the same spouses later sign an ANC and enter into a civil marriage.
For the majority of the Constitutional Court, the marriage was a single, continuous legal relationship. Where the matrimonial property regime of an existing qualifying customary marriage is to be changed, section 21 of the Matrimonial Property Act provides the court-supervised route. A later ANC cannot simply be used as a private shortcut around that process.
For property owners, the practical lesson is equally clear. Disclose the full marital history. Establish the matrimonial property regime early. Do not assume that registration in one name, an unregistered customary marriage or a document headed “ANC” tells the whole story.
Doing so before an offer to purchase, bond or transfer reaches an advanced stage can prevent delays, additional costs and disputes over consent and authority.
Wessels & Smith Inc assists with property transfers, bond registrations, antenuptial and postnuptial matrimonial-property matters and related legal requirements. Where marital status or an existing agreement may affect a property transaction, obtaining advice at the outset can help identify and address the issue before transfer is delayed.
Disclaimer: This article is provided for general information and does not constitute legal advice. Customary marriages, matrimonial property regimes and property transactions are fact-specific. Individual circumstances should be assessed by a qualified legal practitioner.
