Customary marriage: An overview

Before the establishment of the Recognition of Customary Marriages Act 120 of 1998 (“The Act”), customary marriages (customary unions) were not legally recognised in South Africa.

A civil marriage is a marriage concluded between two major parties, which is monogamous and must be performed by a marriage officer in order to be valid.

What is a customary marriage?  In South Africa a customary marriage is understood as being entered into in accordance with the traditions and customs of the indigenous African customary law. The Act defines it as: “a marriage concluded in accordance with customary law. The wedding celebrations differ from culture to culture and could include, but are not limited to song and dance, the slaughter of cattle and the exchange of gifts between the families. The distinctive nature of customary marriages is that the husband is permitted to enter into a polygamous marriage, which is different from a civil marriage.

In terms of Section 3 of the Act the legal requirements for a valid customary marriage is the following:

  • The parties must be older than 18; and
  • The parties must both agree to be married under customary law; and
  • The parties must have negotiated and celebrated the marriage in accordance with customary law.

Even though the husband does not need to pay Lobola or “magadi” for the marriage to be recognised by the law, payment of Lobola demonstrates the intention of the parties to be married under customary law.  The Act provides that the spouses of the customary marriage have a duty to ensure that the marriage is registered with Home Affairs within 3 months after the marriage has been concluded. It is important to note that failure to register the marriage does not affect the validity of the marriage.

A customary marriage is automatically considered to be in community of property if a valid Antenuptial Contract has not been signed and registered. If the parties wants to enter into a marriage out of community of property, the Antenuptial Contract must be signed BEFORE the ceremony or celebration of the marriage, in other words before the parties proceed with the rituals and tradition of concluding the marriage. Failure to execute the Antenuptial Contract before the celebration will result in the marriage being in community of property.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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