When are you actually married under customary law?

South Africans married under traditional ethnic customs should enjoy the same legal status and protections under the law as those in civil marriages as a result of the Recognition of Customary Marriages Act (RCMA) which was enacted in 2000.

That was what the legislators intended, but in practice cases have since arisen challenging whether the marriage was in fact a customary marriage and the courts have had to provide clarity.

Many of these cases have arisen after the death of a person married under customary practices and a judge has had to decide whether the couple was legally married or not in order to determine whether a claim on a person’s estate or pension fund benefits was valid.

Here are some of the cases that have clarified legal questions about customary marriages:

What practices must be fulfilled for a marriage to be valid?

Mpho Kgomongoe, head of legal and technical at Simeka Consultants and Actuaries, says the RCMA defines a customary marriage as one “negotiated and entered into or celebrated in accordance with customary law”.

“The issue is whether a customary marriage has only been entered into (and not yet concluded) or whether it has been concluded (finalised) in accordance with customary law,” she says.

Kgomongoe says that in the case of Moropane v Southon (2014), the Supreme Court of Appeal (SCA) found that the handing over of the bride to her in-laws is the most crucial part of a customary marriage.

“[The court] provided that it was through this symbolic customary practice that the makoti (the bride or daughter-in-law) is finally welcomed and integrated into the groom’s family, which becomes her new family,” she says.

In the case of M v K (unreported case, 2017/2018), the court held that the handing over of the bride is what distinguishes mere cohabitation from marriage.

Kgomongoe says that in Mbungela and Another v Mkabi and Others (2020), the Supreme Court held that while the value of the custom of bridal handover cannot be understated, neither can the importance of the observance of traditional customs and usages that constitute and define the provenance of African culture. One such custom is the paying of lobola.

In this case, the wife’s relatives argued that the marriage was invalid because the bride’s family had not handed the bride over to the groom in a formal ceremony. However, lobola negotiations had taken place, a portion of the lobola had been paid, the two families had exchanged gifts, and, for most of the time the couple lived together, had enjoyed good relations and accepted the couple as married.

“The purpose of the ceremony of the handing over of a bride is to mark the beginning of a couple’s customary marriage and introduce the bride to the groom’s family. It is important, but not necessarily a key determinant of a valid customary marriage. Thus, it cannot be placed above the couple’s clear volition and intent where, as happened in this case, their families, who come from different ethnic groups, were involved in, and acknowledged, the formalisation of their marital partnership,” Judge Mandisa Maya said in her judgment.

What happens when a man takes a second wife?

Polygyny – a form of polygamy in which a man can be married to more than one wife – is recognised under the RCMA, but under strict conditions aimed at protecting the wives’ rights, including the requirement that a court approves the property regime governing the spouses’ property.

Kgomongoe says that, depending on cultural practices, there may be a requirement for the man to obtain consent from the first wife to take a second wife and any subsequent wives.

In the Constitutional Court case Mayelane v Ngwenyama (2013), a woman disputed the validity of her late husband’s second marriage because she, as the first wife, had not provided her consent. This was a requirement of the customary law of the Xitsonga community to which the parties belonged.

The judgment states: “The RCMA is … premised on a customary marriage that is in accordance with the dignity and equality demands of the Constitution. A customary marriage where the first wife has consented to the further marriage conforms to the principles of equality and dignity as contained in the Constitution. Where the first wife does not give consent, the subsequent marriage would be invalid for non-compliance with the Constitution.”

The RMCA also provides that no spouse of a marriage entered into under the Marriage Act may, during that marriage, enter into any other marriage, including a customary marriage. “Where a civil marriage exists, a subsequent customary marriage cannot be entered into,” Kgomongoe says.

In Mavundla v Mthethwa (2025), a second customary marriage was declared invalid because the husband’s earlier civil marriage was still in force.

How can a customary marriage end?

Kgomongoe says the RMCA states that a customary marriage can only be dissolved by a court by a decree of divorce. “Couples who are married under customary law still need to go to court to dissolve their marriage. In the absence of a divorce decree the customary marriage still exists and cannot be dissolved by agreement or separation of the parties,” she says.

This was tested in a case to come before the Financial Services Tribunal, TN vs Pension Funds Adjudicator (2022), where a woman had not lived with her husband for a number of years before his death, having returned to live with her family. According to local customary law, this indicated that the marriage had dissolved, and both the pension fund and the Pension Funds Adjudicator had taken the position that this was the case.

The Tribunal disagreed, saying the only way any marriage, including a customary marriage, can end, under South African law, is through divorce or death.

How can couples ensure certainty?

In practice, a customary marriage is sometimes difficult to verify. How should young couples joined through customary rites ensure certainty under the law?

Kgomongoe says that a customary marriage concluded after the RCMA came into force in November 2000 must be registered within three months or within such period as determined by the Minister from time to time in the Government Gazette.

“Although the Act provides for registration, this is not a requirement for a valid customary marriage. A registration certificate serves as prima facie proof of the existence of a customary marriage and of the particulars contained therein. It makes it easier to prove the existence of a marriage,” she says.

This means that although failure to register the marriage does not render that marriage invalid, if couples want certainty, they need to register their customary marriages with the Department of Home Affairs.