Customary marriages are fully recognised in South African law. They carry the same weight as civil marriages, with real consequences for property, inheritance, maintenance and divorce. Yet many couples married under customary law have never registered their marriage, and some are unsure whether it is valid at all.
These questions often surface at the worst possible moment: when a spouse dies, when a pension or estate must be claimed, or when the relationship ends. The Department of Home Affairs ran a special registration window for unregistered customary marriages, which closed on 31 August 2026. At the same time, Parliament’s Portfolio Committee on Home Affairs has been holding public hearings on the Marriage Bill, which aims to bring South Africa’s marriage laws together in a single statute.
This article explains when a customary marriage is valid, why registration matters, and how such a marriage is ended.
When is a customary marriage valid?
The Recognition of Customary Marriages Act 120 of 1998 (RCMA) came into force on 15 November 2000. It recognises customary marriages concluded both before and after that date, if they were valid under customary law.
For a customary marriage concluded after the Act came into force, section 3 requires that:
- both prospective spouses are 18 or older;
- both consent to be married to each other under customary law; and
- the marriage is negotiated and entered into or celebrated in accordance with customary law.
The third requirement often causes disputes. Customary law is living law that varies between communities and changes over time. Courts look at the practices actually followed by the families involved, such as lobolo negotiations and the integration or handing over of the bride. The Supreme Court of Appeal has confirmed that customs like the handing over of the bride can be waived or adapted by the families, and that a marriage is not invalid simply because one ritual did not take place.
Why registration matters
Section 4 of the RCMA requires spouses to register their customary marriage with the Department of Home Affairs, generally within three months of the marriage or within a longer period the Minister allows. Registration is done at a Home Affairs office, and the spouses, a representative from each family and supporting documents such as identity documents and proof of lobolo are usually needed.
Importantly, failing to register does not make a valid customary marriage invalid. But a registration certificate is strong proof that the marriage exists. Without it, a surviving spouse may struggle to claim from a pension fund, inherit, or be appointed in an estate, and may have to prove the marriage through witnesses and evidence of the customary process.
If the special registration window has passed, registration may still be possible. Where Home Affairs will not register a marriage, or there is a dispute about whether the marriage exists, a court can be approached to order its registration or cancellation.
Property consequences
A monogamous customary marriage concluded after 15 November 2000 is in community of property unless the spouses signed an antenuptial contract before the marriage. This means a joint estate, shared debts and, generally, the need for both spouses’ consent for major transactions.
For customary marriages concluded before the Act, the Constitutional Court and later amendments to the RCMA have confirmed that wives have equal rights with their husbands to the marital property. Spouses can also apply to court to change their matrimonial property system.
Polygamous marriages
Customary law permits a husband to take more than one wife where the relevant custom allows it. The RCMA requires a husband who wishes to enter into a further customary marriage to apply to court to approve a written contract regulating the future matrimonial property system of his marriages. The Constitutional Court has held that, at least under the customary law it considered, the consent of the existing wife is required for a valid further marriage. A further marriage concluded without the necessary consent risks being found invalid, which can have serious consequences for the later spouse and any claims to the estate.
Divorce
A customary marriage can only be dissolved by a court, through a decree of divorce, on the ground that the marriage has irretrievably broken down. Traditional or family processes may help with mediation and reconciliation, but they cannot end the marriage on their own.
The Divorce Act 70 of 1979 and the Mediation in Certain Divorce Matters Act 24 of 1987 apply. The court can make orders on:
- the division of the joint estate or other matrimonial property;
- maintenance for a spouse;
- care, contact and maintenance for children, with their best interests being paramount; and
- where there is more than one wife, the interests of all spouses.
The court may also take into account any arrangements the spouses made under customary law.
What the Marriage Bill may change
The Marriage Bill proposes a single legal framework for all marriages, including civil, religious and customary marriages. It is still before Parliament, and its final content may change. Until it is passed and comes into force, the RCMA continues to apply.
Practical steps
- Check your status. Confirm whether your customary marriage is registered with Home Affairs.
- Register if you have not. Visit Home Affairs with both spouses, family representatives and supporting documents.
- Keep evidence. Retain lobolo letters, photographs and the names of witnesses, in case the marriage is ever disputed.
- Consider your property system. If you do not want to be married in community of property, take advice before the marriage, or ask about changing your system later.
- Make a will. A will protects your spouse and children and reduces the risk of family disputes.
- Take advice before a further marriage. The court approval and consent requirements must be met.
How O’Reilly Law can help
We advise on the validity and registration of customary marriages, applications to court to register a marriage or change a matrimonial property system, divorces involving customary marriages, and the related questions of property, maintenance and children. We also assist surviving spouses who need to prove a marriage in an estate or pension claim.
Questions about your customary marriage? Contact us for confidential advice.
Related reading: Divorce in South Africa: a guide · Dying without a will: intestate succession
This article is general information and not legal advice. Correct as at October 2026.