Bregman Moodley Attorneys Blog

A summary of customary marriages in South Africa

The Recognition of Customary Marriages Act, 120 of 1998 (RCMA), that came into operation on 15 November 2000, gives full legal recognition to customary marriages in South Africa.

The following summarises the position:

·        The law recognises your customary marriage if

o   you and your spouse are both older than 18;

o   You have both agreed to be married under customary law;

o   You negotiated and celebrated your marriage following the rules set out in customary law;

·        Even though the husband does not need pay Lobola for the marriage to be recognised by the law, payment of Lobola helps to show that you followed the traditions of customary marriage (the customs and usages traditionally observed among the indigenous African peoples of South Africa and which forms part of the culture of those people;.  

·        If you are married under customary law, you should (but don’t have to) register your marriage with the Department of Home Affairs;

·        Customary marriages can be monogamous or polygamous.  Polygamy means that a male older than 18 years of age can marry more than one wife.  If the husband has only one wife, the law will recognise the traditional law marriage whether it has been registered or not. But if the husband wants to take a second wife, he must enter into a written agreement stating what should happen to the property and how it should be shared among his wives. The husband must apply to the court to approve the written contract. The court will ensure that all the proprietary interests of all wives are protected;

·        The RCMA automatically sees all people in customary marriages as married in community of property. This means that the husband and wife share all property, money, and debts equally. If you and your partner do not want to be married in community of property, you will have to enter into an ante-nuptial contract before you get married. If you are already married and do not want to be married in community of property, you will have to apply to the High Court to change your status.

·        The RCMA recognises that the wife has equal rights and status with the husband when it comes to deciding what happens to property they own together. A customary wife is also allowed to enter into a contract without the permission of the husband;

·        If the husband has no other wives, you can get married under civil law as well as customary law. However, neither of you will be able to enter into customary marriages with anyone else while you are married under civil law.