Customary marriage, civil marriage and your property system

If you are married under customary law, your marriage is in community of property by default. You and your spouse can also enter into a civil marriage without going to court. However, to change from in community of property to out of community of property, you have to go to court. A 2026 Constitutional Court judgment makes one thing clear. Changing your type of marriage does not, on its own, change your property system.

The question the court answered

Can spouses who are already married under customary law validly enter into an antenuptial contract (ANC), convert their marriage into a civil marriage and at the same time change from in community of property to out of community of property, with or without the accrual system, without a court order?

What the Constitutional Court decided

In VVC v JRM, decided on 21 January 2026, the Constitutional Court held that section 10 of the Recognition of Customary Marriages Act 120 of 1998 allows the same two parties to move from a customary-law marriage system to a civil-law marriage system. It does not, however, automatically allow them to change their matrimonial property regime without a court order.

If they want to change from in community of property to out of community of property, they must apply to court under section 21 of the Matrimonial Property Act 88 of 1984.

Why the law works this way

The Recognition of Customary Marriages Act was enacted to recognise customary marriages fully, to protect spouses in customary marriages and, in particular, to protect women who have historically suffered discrimination.

What this means for you

Converting your marriage from a customary marriage to a civil marriage and changing your property system are two separate steps. The first can be done by agreement between the two of you. The second needs a court order. If you are planning either, get advice first so that the change is valid and your position is properly protected.