UMSHADO THE WEDDINGS: THE CONSTITUTIONAL COURT- LEGAL BREAKDOWN OF ITS RULING IN THE MATTER OF VVC v JRM and Others ZACC 2.

Umshado the Weddings. Its an even wherein two people look into each others eyes and commit to be together till death do them apart, through sickness and through health. Its a lifetime contract wherein lovers commit to be bound to the terms and conditions of their unconditional law.

That the idealistic, romanticied version of marriage. I sit at night, looking at the ceiling and that is my idea of marriage. But that is far from the truth in the Modern 21st century age. Marriage has become a symbol of status more than a representation of love forever and forever. Its become an event to show off your life instead of showing off your deep love for each other so the world can be inspired. Its an event and not a moment of experience. Divorce being in the sixty percents is alarming, because What the Actual Fuck??????? Did we not commit to love each other forever throught sunshine, rains and thunderstoms. Did we not make an oath to each other that we would be committed to each other forever and forever till death do you apart. Now dont get it twisted, some cases, things have to end. There is ofcourse a line to this wherein, if that line is cross, ending your relationship is the only option. But to just pull out papers and involve the court just because you dont Love the other person anymore, man, Respectfully, get the fuck outta here.

Thats just my opinion.

Anyway lets talk about divorce. We herein to delve into a recent Constitutional court judgment wherein the court clarity something which affects everyone who has marriage in their minds. Its a landmark judgment because it provided clarity as to how a certain aspect of society is conduct. That aspect being marriage. We look at the judgment of VVC v JRM and Others ZACC 2. We will look into the facts, legal issues, legal principles, court evaluation and answering of the legal question and lastly we will touch on the judgment and the impact of the judgment on our lived realities.

1. The Facts of the Matter

The applicant (VVC) and the first respondent (JRM) were married under customary law on 5 August 2011. Because they did not conclude an antenuptial contract (ANC) prior to this marriage, it was automatically in community of property. Eight years later, on 19 February 2019, they decided to convert their marriage into a civil marriage and signed an ANC, seeking to change their matrimonial property regime to out of community of property subject to the accrual system. They concluded the civil marriage on 10 June 2021 without formally dividing the joint estate created by the customary marriage.

In May 2022, JRM sought a divorce and the enforcement of the ANC. VVC opposed this, arguing that the ANC was invalid. She pleaded that if the ANC was found to be valid, then Section 10(2) of the Recognition of Customary Marriages Act (Recognition Act) was unconstitutional because it permitted spouses to change their property regime from in community of property to out of community of property by mere written agreement without judicial oversight, thereby risking arbitrary deprivation of property and unfairly discriminating against financially weaker spouses. The High Court agreed with VVC, declaring the ANC invalid and Section 10(2) unconstitutional. The matter then came before the Constitutional Court for confirmation of the invalidity order.

2. The Issues and Legal Questions the Court Answered :

The Constitutional Court had to resolve the following core issues:

• The validity of the ANC: Did the agreement signed in 2019 (after the customary marriage but before the civil marriage) amount to a valid ANC or was it a postnuptial contract requiring judicial oversight?

• The interpretation of Section 10(2) of the Recognition Act: What happens to a customary marriage and its joint estate when the spouses subsequently conclude a civil marriage?

• The constitutional validity of Section 10(2): Does the section unconstitutionally allow for a change in property regimes without judicial oversight, leading to the arbitrary deprivation of a financially weaker spouse's property?

3. Legal Principles and Rules Applicable

• Section 10(2) of the Recognition Act: Regulates the change of a marriage system when spouses in a customary marriage subsequently conclude a civil marriage.

• Section 8(1) of the Recognition Act: Establishes that a customary marriage can only be dissolved by a decree of divorce (or death).

• Section 7(2) & 7(5) of the Recognition Act: Stipulates that customary marriages are in community of property by default and subjects them to the Matrimonial Property Act (MPA).

• Section 21 of the Matrimonial Property Act (MPA): Mandates that spouses seeking to change their matrimonial property regime after marriage must apply to the High Court for leave to do so, ensuring there are sound reasons, notice to creditors, and no prejudice to other persons.

• Section 9 (Equality) and Section 25 (Property) of the Constitution: Guarantee the right against unfair discrimination and the right not to be arbitrarily deprived of property.

  
  

4. The Court's Discussion, Evaluation, and Application of the Law

The Status of the Customary Marriage: The majority (per Majiedt J) evaluated the historical context and the transformative purpose of the Recognition Act, noting that civil marriages are not superior to customary marriages. Crucially, the Court held that entering into a civil marriage does not dissolve the pre-existing customary marriage. The Recognition Act envisions a single, continuous marriage relationship that simply undergoes a change in the governing legal system.

The Validity of the ANC: Because the marriage relationship started in 2011 and never terminated, any contract altering the property regime signed in 2019 was executed after the marriage had commenced. It was therefore a postnuptial contract, not an antenuptial contract.

The Need for Judicial Oversight: To alter a property regime postnuptially, spouses are legally compelled to use the structured, court-supervised process under Section 21 of the MPA. Because VVC and JRM did not apply to a court under Section 21 of the MPA to change their regime, their 2019 contract was invalid and unenforceable.

The Constitutional Question: The Court concluded that Section 10(2), properly interpreted, does not allow spouses to bypass judicial oversight to change their property regime. Since the ANC was invalid and the parties remained married in community of property, the constitutional challenge fell away entirely. The High Court had erred in venturing into the constitutional question.

(Note: Rogers J penned a dissenting judgment arguing that the ANC was validly concluded before the civil marriage and regulated only the civil marriage's future consequences, but he agreed the section was not unconstitutional. However, the majority reasoning prevails).

5. The Court's Judgment

The Constitutional Court declined to confirm the High Court’s order of constitutional invalidity regarding Section 10(2) of the Recognition of Customary Marriages Act. The ANC was deemed invalid, meaning the parties remained married in community of property. No order was made as to costs.

6. The Impact of this Judgment on the Lived Realities of Society

Positive Impacts:

Protection of Vulnerable Spouses: The judgment serves as a massive safeguard for financially weaker spouses in customary marriages. It prevents a wealthier spouse from coercing or deceiving their partner into signing away their half-share of the joint estate through a private contract just before converting the marriage to a civil one.

Safeguarding Creditors: By strictly enforcing Section 21 of the MPA, the Court ensured that creditors are given formal notice before a couple changes their property regime from in community to out of community of property, protecting the commercial rights of third parties.

Elevating Customary Law: The judgment decisively eradicates the historical colonial and apartheid relic that treated customary unions as inferior "unions" that could be casually wiped out and superseded by a civil marriage. It firmly establishes that a customary marriage holds equal dignity and cannot simply vanish without a formal divorce.

Negative Impacts:

Financial and Administrative Burdens: Couples in a customary marriage who genuinely and mutually wish to change their property regime upon converting to a civil marriage now face a high barrier to entry. They cannot simply pay a notary to draft a standard ANC; they must incur the substantial legal costs and delays of bringing a formal High Court application under Section 21 of the MPA.

Restriction of Contractual Autonomy: The judgment limits the freedom of spouses to privately regulate their own financial affairs. Even if both parties are fully informed, wealthy, and willing to separate their estates prior to a civil ceremony, the state forces them through a judicial hoop, treating them differently from couples marrying for the first time.

Legal Uncertainty for Past Contracts: Spouses who previously converted their customary marriages to civil marriages and signed ANCs under the assumption that they were valid may now find that those contracts are null and void. This could disrupt estate planning, cause shock sequestrations, and trigger highly complex divorce disputes

Disclaimer: The views and analyses expressed on this blog are for informational and educational purposes only. This site serves as a self-guiding diary intended to facilitate my personal understanding of specific subjects and does not serve as an authoritative reference. Information is provided "as is" without any guarantees of completeness or accuracy. Please consult a local, professionally trained individual in the subject matter or you can conduct your own research for any formal inquiries or professional advice. PSA, dont corner an attorney at a Maza or a Braai on a weekend and consult there. Preferably arrange an appointment with the office