A recent ruling by the Constitutional Court of South Africa has clarified an important legal principle affecting married couples and their property rights: spouses cannot change their matrimonial property regime by private agreement once they are already married.
For property practitioners, buyers, and sellers, this decision is particularly relevant when dealing with property ownership, transfers, and divorce-related transactions.
In VVC v JRM and Others, a couple married in terms of customary law in 2011. Under the Recognition of Customary Marriages Act, this meant their marriage was automatically in community of property.
Years later, before entering into a civil marriage ceremony, the couple signed an antenuptial contract (ANC) intending to change their matrimonial property regime to out of community of property with accrual. When the marriage later broke down, a dispute arose over whether that ANC was valid.
The Constitutional Court ruled that the antenuptial contract was invalid, because it had been signed after the customary marriage had already been concluded.
The Court confirmed a key legal principle:
- Once a marriage exists, spouses cannot change their matrimonial property regime simply by signing a private agreement, even if both parties consent.
- The only lawful way to change the regime is through a joint application to the High Court in terms of Section 21 of the Matrimonial Property Act (explained further in Part 2).
As a result, the couple’s marriage remained in community of property.
