Customary marriages: are you protected?

The Recognition of Customary Marriages Act 120 of 1998 (the Act) came into effect on 15 November 2000. Customary marriages are concluded in accordance with the traditions and customs of indigenous South Africans.

Although the non-registration of your customary marriage will not invalidate it, registration serves as legal proof of the existence thereof and can prevent unnecessary problems in the future.

Should a dispute arise, your marriage certificate may be used to easily enforce your rights in the following instances:

  • to claim maintenance from your spouse;
  • to claim against your spouse’s deceased estate;
  • to assist the Court in protecting your property rights and the interest of your children in a divorce; and
  • to protect your property rights, should your husband want to take another wife.

Section 4 of the Act makes provision for either spouse, on behalf of both spouses, to register the marriage at Home Affairs within three months of the conclusion thereof.

Marriage regimes in a monogamous customary marriage (one wife, one husband)

In terms of section 7(2) of the Act, the matrimonial property regime that governs a monogamous customary marriage entered into after the commencement of the Act, is that of a marriage in community of property and of profit and loss. To prevent this provision from applying, spouses would have to specifically exclude such consequences in an ante-nuptial contract, prior to concluding their marriage.

Section 7(1) of the Act provides that the proprietary consequences of a marriage entered into before the commencement of the Act will be governed by Customary Law, which automatically deems such marriages to be out of community of property.

This provision was challenged in the case of Gumede v The President of the Republic of South Africa and Others 2009 (3) BCLR 243 (CC), wherein the Constitutional Court declared section 7(1) to be invalid and inconsistent with the Constitution, to the extent that it applies to monogamous customary marriages. As a result, monogamous marriages entered into prior to commencement of the Act are now covered by the Act and are in community of property.  

Therefore, should you wish to enter into a customary marriage, out of community of property with or without the accrual, it would be advisable to consult an attorney, who is also a Notary, to draft and execute an ante-nuptial contract for you.

This should be done immediately after your engagement and prior to the conclusion of your customary marriage, to avoid your marriage automatically being in community of property. To remedy this, you would need a court application to change your marriage regime, which is a costly and time consuming process.

Marriage regimes in a polygamous customary marriage (one husband, multiple wives)

In terms of section 7(6) of the Act, a husband who wishes to enter into a further customary marriage with another woman must make an application to Court to approve a written contract. This contract will regulate the future matrimonial property system of his existing marriage and the prospective one.

In Mayelane v Ngenyama and Another 2013 (8) BCLR 918 (CC) it was held that failure to comply with the provisions of section 7(6) of the Act will render the purported further customary marriage to one out of community of property.

For each subsequent marriage, a husband would need to comply with the provisions of section 7(6).

It is important to note that polygamous marriages entered into before commencement of the Act now enjoy the same protection as polygamous marriages entered into after the Act. Such protection pertains to the proprietary consequences governing these marriages.

This was as a result of the Constitutional Court judgment in Ramuhovhi and Others v President of the Rebublioc of South Africa and Others 2018 (2) BCLR 217(CC) case where parliament was ordered to amend the Act to make provision for the protection of proprietary consequences of polygamous marriages entered into prior to the commencement date.

In light of the above, if you are considering being party to or joining an existing polygamous marriage, it would be advisable to consult with an attorney to clarify what your legal standing in the marriage will be. 

Contact VDT Attorneys should you require assistance in this regard. |012 – 452 1300 |


This article is intended for information purposes only and is a brief exposition of the abovementioned legal position. Mention is not necessarily made of all the finer nuances as set out in the abovementioned legislation. This article should under no circumstances be construed as formal legal advice.

© VDT Attorneys

July 20, 2020

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