What are my rights in a customary marriage?

The Recognition of Customary Marriages Act (RCMA), signed into law by President Nelson Mandela on 20 November 1998 and effective from 15 November 2000, marked a significant step in validating African customary practices under South African statutory law, affording people in recognised customary marriages equal legal status and substantial protections, broadly comparable to those in civil marriages, although some legal rules still differ.

The RCMA particularly addressed the rights of women in customary marriages, which until then had been almost non-existent. The laws of the past, including the Black Administration Act, supported a patriarchal system where, in often polygynous (single-man, multiple-wife) arrangements, the man of the household had control over his wives, who were considered legal minors. These women had limited rights, including limitations to acquiring property, signing contracts, inheritance and maintenance.

The RCMA Act defines customary law as “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples”.

Note that although spouses in customary marriages enjoy the same rights of those in civil marriages, differences between customary marriages and civil marriages remain under the law. These differences have been addressed in the new Marriage Bill, introduced to parliament in December 2023 and yet to be passed into law. The Marriage Bill aims to consolidate the current Marriage Act, the Recognition of Customary Marriages Act and the Civil Union Act into a simplified, inclusive marriage framework.

Is my existing marriage recognised?

Customary marriages concluded before 15 November 2000 are recognised if they were valid customary marriages under the relevant customary law. The RCMA required people married before this date to register their marriages at the Department of Home Affairs (DHA) within a year of its enactment.

Unregistered marriages remain legally valid; however, registration serves as vital proof of the marriage in disputes concerning divorce or deceased estates.

Marriages concluded since 15 November 2000 are subject to the same conditions as new customary marriages.

What are the requirements for new marriages?

Customary marriages concluded since 15 November 2000 are only recognised if they comply with the following conditions:

You and your partner are 18 years of age or older. (Although the RCMA and Marriage Act provide for under-18 marriages with parental consent in special circumstances, new laws, including the Marriage Bill, aim to outlaw child marriages with no exceptions.)

You each consent to the marriage.

Neither of you must already be in a civil marriage.

The marriage is negotiated and entered into according to the customs and traditions of your community.

You are obliged to register your marriage within three months of the ceremony, although late registrations are accepted. Unregistered marriages remain legally valid but may present problems in any disputes because proof of marriage may be more difficult to determine.

How do I register and what proof do I need?

Either spouse, or both of you, can register the marriage. This can be done at any DHA office or by a designated traditional leader if there is no DHA office nearby. You need to:

Complete a registration form;

Present valid ID documents;

Bring witnesses, such as family elders or community leaders;

Provide supporting evidence, such as lobola agreements and photographs.

Your marriage will be registered at the DHA and you will receive a marriage certificate. It is the simplest safeguard you can take to protect your rights.

Under which property regime does my marriage fall?

Customary marriages are in community of property by default. This means that, unless you sign an antenuptial contract stating otherwise, all property owned by you and your spouse is shared equally. See Under what marital property regime am I married?

If you and your partner want a different property system, you must put the correct legal arrangement in place at the right time. 

An antenuptial contract must be concluded before the marriage. If you are already married and want to change your matrimonial property system, you generally need a joint court application for a post-nuptial contract under section 21 of the Matrimonial Property Act (as applied to qualifying customary marriages).

What happens in polygynous marriages?

Polygynous customary marriages are recognised, with the law protecting all spouses’ rights. A man may only take another wife if he is already in a customary marriage and obtains consent from his existing wife or wives. He must also ask the court to approve a property regime that treats all his wives fairly.

What are the rights of children from a customary marriage?

The rights of children are governed by the Children’s Act, no matter what type of marriage or relationship the parents have. They include the rights to family care, financial support, education, basic needs and protection. Both parents have full and equal parental responsibilities. In a divorce, the needs of the children are regarded as paramount by our courts, and a court may make certain orders in this regard.

What is the divorce procedure for couples in customary marriages?

Divorces for both civil and customary marriages fall under the Divorce Act. Proceedings are filed in either the High Court or regional Divorce Court. Assets are divided according to the marital property regime.

In customary marriages, this can be complicated by unregistered unions, multiple wives or disputes about the date the marriage began.

What happens on the death of my spouse?

This depends on your marital property regime. For marriages in community of property, see “What do I need to know about being married in community of property?”. For marriages out of community of property, with and without accrual, see “Why is marriage with the accrual system a popular choice?” and “What does it mean to be married out of community of property without accrual?”

This article was written by Martin Hesse, a freelancer personal finance writer and former editor of Independent Newspaper’s Personal Finance. It was reviewed by Wessel Oosthuizen, head of financial planning at Fiscal Private Client Services and the former director of the Centre for Financial Planning Law at the University of the Free State.