Legal Articles

Customary marriages hold deep cultural significance in South Africa, yet they are often subject to legal complexities, particularly when it comes to inheritance rights. While customary marriage law in South Africa is governed by the Recognition of Customary Marriages Act, 1998 (RCMA), conflicts frequently arise between traditional practices and formal legislation. One of the most contentious issues is how inheritance is handled in customary marriages, especially when intestate succession (inheritance without a will) and community of property principles come into play.

This article explores inheritance rights in customary marriages, the impact of different marital property regimes, and the legal considerations that spouses should be aware of when dealing with inheritance law in South Africa.

Understanding Customary Marriage Law in South Africa

Under the Customary Marriage Act South Africa, a customary marriage is legally recognised if:

1. It was negotiated, entered into, or celebrated in accordance with customary law.
2. The spouses were over 18 and gave consent to the marriage.
3. The marriage was not prohibited by customary or civil law.

While registration of customary marriages is encouraged for legal clarity, an unregistered customary marriage is still considered legally valid if the above criteria are met.

Customary Marriages and Community of Property

By default, all customary marriages entered into after 15 November 2000 are considered in community of property, unless the spouses sign an antenuptial contract before marriage. This means that:

• All assets and debts are shared equally between spouses.
• Upon divorce or death, the estate is divided equally unless an alternative arrangement is legally stipulated.

However, this legal structure sometimes conflicts with customary inheritance practices, where property is traditionally passed down through male lineage or distributed according to family customs rather than statutory succession laws.

Inheritance Law in South Africa: Statutory vs. Customary Practices

Intestate Succession in Customary Marriages

When a spouse in a customary marriage dies without a will, inheritance is governed by the Intestate Succession Act, 1987, which provides that:

• The surviving spouse is entitled to inherit the greater of R250,000 or a child’s share of the estate.
• If the deceased had multiple customary wives, the estate is divided equally among all spouses.
• If there are children, the estate is divided among the surviving spouse(s) and children.

However, traditional practices may dictate a different approach, such as:

• Eldest sons or male family members inheriting property.
• Family elders deciding on inheritance distribution.

This discrepancy between statutory law and customary traditions often leads to legal disputes.

Is Inheritance Excluded from Community of Property?

A common concern in customary marriages is whether inheritance is excluded from community of property. Under South African law:

• Inheritances received before marriage belong to the recipient only.
• Inheritances received during marriage are included unless specifically excluded by a will or agreement.

This means that unless the deceased clearly stated that an inheritance should remain separate, it may be considered part of the joint estate in a customary marriage.

Customary Marriage Divorce and Inheritance Rights

Division of Assets Upon Divorce

In the event of customary marriage divorce, inheritance rights depend on the property regime:

• In community of property: The entire estate, including inherited assets (if not excluded by a will), is divided equally.
• Out of community of property: Each spouse retains ownership of their assets, including inheritance.

Given the complexities involved, it is advisable to seek legal assistance from attorneys in Johannesburg who specialise in customary marriage law in South Africa.

Case Law and Legal Precedents

Courts have increasingly ruled in favour of statutory inheritance laws over traditional practices. In some cases, courts have set aside customary inheritance traditions in favour of constitutional principles of equality and fairness. This means that surviving spouses and children have stronger legal claims than before.

Protecting Inheritance Rights in Customary Marriages

To avoid legal disputes and protect inheritance rights, spouses should consider:

1. Drafting a Will – Clearly outlining how assets should be distributed.
2. Registering the Marriage – Providing formal legal recognition.
3. Signing an Antenuptial Contract – Defining asset ownership before marriage.
4. Seeking Legal Advice – Consulting attorneys with expertise in customary marriage law.

Van Deventer & Van Deventer Inc - Attorneys Johannesburg

Inheritance rights in customary marriages remain a complex issue due to conflicting statutory and traditional legal frameworks. While South African law seeks to ensure fairness and equality, customary practices still influence inheritance decisions.

At Van Deventer and Van Deventer Inc., our experienced legal team specialises in customary marriage law, inheritance law, and divorce proceedings. Whether you need assistance with estate planning, intestate succession, or property division in customary marriages, we provide expert legal guidance to protect your rights and ensure a legally sound outcome.

If you require legal support for inheritance disputes, wills, or matrimonial property agreements, contact Van Deventer and Van Deventer Inc. for professional and reliable legal assistance.