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From our experience, we have discovered that there is quite a number of couples whom the law recognizes as married under customary law, whereas the couples consider themselves not. It comes as a shock when they are eventually advised that in fact the law recognizes them as married. Most often this happens where families conduct indigenous customary marriage rites in anticipation of a “white” wedding at a later stage. In this discussion we will debunk some myths and share insights with regard to customary marriages.

Are customary marriages legally recognized in South Africa?

Firstly, the Constitution of the Republic of South Africa in Section 211, recognizes customary law and puts an obligation on the Courts to apply it where it is applicable. Secondly, customary marriages are recognized in South Africa under the Recognition of Customary Marriages Act 120 of 1998 (as amended) (RCMA).   

211.       (1) …

                (2) …

(3) The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.

Is it possible that I could be married without paying the full lobola amount?

In the event that other requirements have been complied with, yes one could be married without the lobola amount being paid in full. This position was confirmed by our Courts in the case of Mbungela And Another v Mkabi And Others (820/2018) [2019] ZASCA 134 where, as some of the averments to dispute the validity of the customary marriage, the brother to the deceased argued that Mr Mkabi had not paid lobola in full. While recognising that lobola is definitely an essential element for the establishment of a customary marriage, not paying it in full will not otherwise invalidate a customary marriage that has satisfied other requirements.

We did not register at Home Affairs, is our customary marriage invalid?

Section 4 (9) of the Recognition of Customary Marriages Act 120 of 1998 (as amended) provides that a customary marriage will not be invalid only because of the fact that it was not registered (where other requirements were complied with).

Do we have to conclude an Antenuptial Contract if we want to marry under customary law, out of community of property?

Yes. Where couples intend to marry out of community of property, even under customary law, they ought to conclude a valid antenuptial contract (ANC). Where couples marry under customary law without executing a valid antenuptial contract, such marriage will be In Community of Property by default. We encourage couples to make contact with legal practitioners before any customary marriage rites are performed. The reason is because an antenuptial contract must be executed before the marriage is concluded. After the marriage is concluded only a postnuptial contract, with the leave of the High Court, may be executed. The difference is fundamental and legally effective, so it is important to seek legal assistance before any customary marriage rites are performed. The Courts have, in interpreting section 3 (1)(b) of the Recognition of Customary Marriages Act 120 of 1998 (as amended), held rulings where parties were pronounced as married already, whereas other family members were of the view that there is no valid marriage (as yet). The difficulty lies in determining, at what point can it be concluded that the marriage has come into existence without the full process being completed. It is important therefore for couples to seek legal assistance beforehand.

The bride was not handed over to the groom’s family, is there a valid customary marriage still?

The Court in Tsambo v Sengadi (SCA) (unreported case no 244/19, 30-4-2020) and Mbungela And Another v Mkabi And Others (820/2018) [2019] ZASCA 134, it was held that the handing over of the bride is not indispensable and would not affect the validity of the customary marriage where other requirements were met.

If I am married under customary law, and the marriage is not registered at Home Affairs, do I have to divorce if we decide to separate?

To clarify, separation is one thing and dissolving the marriage is another. To separate, one may simply walk away, but where the marriage is to be dissolved, a formal divorce process has to be done. Many people in customary marriages simply walk away and marry other parties. This is still happening even now, due to the fact that many people are not informed on the validity of customary marriages as well as the consequences of not formally dissolving unregistered customary marriages. In the case of Ramuhovhi and Others v President of the Republic of South Africa and Others (CCT194/16) [2017] ZACC 41, which dealt with proprietary rights of women in polygamous customary marriages prior to the RCMA, it was noted that the Supreme Court of Appeal had confirmed the annulment of a civil marriage which was entered into without dissolving a customary marriage entered into prior. Musenwa, who passed away in 2008, had entered into customary marriages with Masindi, Diana and Tshinakaho. His children argued that Musenwa had also entered into civil marriages with Mosele and Munyadziwa. Tshinakaho subsequently passed away in 2011 whilst Masindi passed away in 1995. In 2011, the Supreme Court of Appeal declared the civil marriage between Musenwa and Munyadziwa null and void. This is because Musenwa had not formally dissolved his customary marriages and therefore could not enter into a civil marriage with another party.

Van Deventer and Van Deventer Incorporated Inc - Customary Marriage Law

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