Constitutional Validity Maintained: The Constitutional Court Declines to Strike Down Section 10(2) of the Recognition Act

By Ocean Postman

On 21 January 2026, the Constitutional Court handed down their decision in a landmark case that will come to define how we understand the synchronous presence of both customary and civil marriages in South Africa. The Court’s ruling served to clarify and affirm that customary marriages and civil marriages remain on par with one another and caution South Africans entering into these marriage arrangements to understand the rule of law as it applies to both. The judgement was in the case VVC v JRM and Others, where the High Court previously upheld that certain impugned provisions of the Recognition of Customary Marriages Act , namely as it pertains to section 10(2), were unconstitutional. Upon application for its validity, the Constitutional Court did not confirm the High court’s position. 

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Instead, the Constitutional court disagreed, finding that on close examination, the very objectives of the Recognition Act were aimed at equality. The judgement correctly highlights the past discrimination against African customary traditions, and their treatment as inferior to the conventional civil marriage. The Recognition Act came about with the jurisprudential intent of rectifying unequal treatment, the origins of which had its roots in the discriminatory apartheid regime. However, the court was at pains to clarify that a civil marriage and customary marriage do not exist as dual marriages, but that they instead formed one continuous marriage, which is still party to the requirements stipulated in our legislation. 

As such, whilst the antenuptial upholding was not found to be unconstitutional, it did not conform with the requirements of judicial oversight, and for that reason was found to be invalid. The judgement in this case confirms that judicial oversight remains absolutely necessary in changing the proprietary regime- whether it be in community of property or out of community of property, or for that matter in a customary or civil marriage. 

The case heard by the Court, concerned a couple whose initial marriage by customary law was entered into in community of property which is the default arrangement of all customary marriages. A marriage being in community of property means that all assets and liabilities of both partners that accumulate before and after a marriage is entered into, are shared equally by the spouses in a joint estate. In this case, the couple subsequently entered into a civil marriage in the years following their customary marriage, and agreed upon an antenuptial contract being included in their civil marriage. 

Upon divorcing, one member of the former couple argued that the upholding of the antenuptial contract entered into as part of the civil union was unconstitutional on the grounds that it amounted to a violation of section 25(1) of the Constitution as an arbitrary deprivation of property. The applicant argued that the antenuptial was entered into by mere written agreement, not with the judicial oversight required. The applicant also argued that allowing a change to the marriage regime by mere written agreement would likely cause harm to the “financially weaker spouse” which in customary marriages due to the historical reality of widespread patriarchal values, this weaker spouse is more likely to be the women entering into these marriages. On these grounds, this matter also concerned the right to equality as protected by section 9 of the constitution.

Research shows that it is not an uncommon practice for those seeking to marry in South Africa to desire to enter into both a civil and customary marriage, and as this practice becomes more commonplace, the rights to equality and to property take centre stage. At issue here is also the right to language and culture, as stated in section 30 of the constitution. Just as in many cultures, indigenous cultures must reckon with their patriarchal histories, and it can be agreed that it is important that our laws continue to progress in the way of equality, including those in the customary branch of our laws. In no way does entering into a civil marriage terminate the couple’s right to participate in the norms related to their customary marriage, and the judgement affirms this. 

the personal is political

Feminist scholar Carol Hanisch popularized the phrase ‘the personal is political’, a rallying cry as it relates to women’s rights, as much of the discrimination women face begins within family structures and interpersonal relationships. This case is central to affirming on balance, the rights to culture as well as gender equality, without compromise regarding either right.