Recognition and Posthumous Registration of Customary Marriages in South Africa

 

A frequent question asked by widows in South Africa is:

“Can I still register my customary marriage if my husband has passed away?”

The answer is yes—South African law allows a surviving spouse to register a valid customary marriage even after one partner has died, as long as the requirements for a customary marriage were fulfilled.

Legal Background

In South Africa, marriages can be recognized under civil, religious, or customary law. Customary marriages (conducted according to African customs) are legally recognized through the Recognition of Customary Marriages Act 120 of 1998 (RCMA).

This law confirms that if all customary requirements are met, the marriage is valid, even if it was never officially registered with Home Affairs. However, registration is still important for asserting inheritance rights, maintenance, and spousal benefits.

Requirements for a Valid Customary Marriage

A customary marriage is valid under Section 3(1) of the RCMA if:

• The marriage was negotiated and celebrated according to customary law.
• Both parties were over 18 years old.
• Both parties consented to the marriage.

Importantly, registration is not required to make the marriage legally valid, but it is necessary for administrative recognition, like obtaining a marriage certificate or enforcing spousal rights.

Posthumous Registration: Is It Allowed?

Yes. Section 4(2) of the RCMA provides that either spouse may apply to the registering officer in the prescribed form for the registration of their customary marriage and must furnish the registering office r with the prescribed information and any additional information which the registering officer may require in order to satisfy himself or herself as to the existence of the marriage.  

However, many surviving spouses—mostly women—face pushback from the Department of Home Affairs or the deceased’s family, who may deny that a valid marriage existed. This often happens in disputes over inheritance, pensions, or funeral arrangements.

What Is Needed for Posthumous Registration?

To register a marriage after one spouse’s death, the surviving spouse should gather evidence showing that a valid customary marriage took place. This may include:

• Proof that lobola (bride price) was paid.
• Evidence of a traditional wedding celebration.
• Witness statements from elders, family members, or community leaders.
• Photos, videos, or written agreements, if available.

Home Affairs may require confirmation from the deceased’s family. If they refuse, the surviving spouse can approach the High Court, which has shown a willingness to order Home Affairs to register the marriage.

Key Case Law

Mabuza v Mbatha 2003 (4) SA 218 (C)

Summary: The court ruled that a customary marriage was valid despite the absence of the ukumekeza ritual, where lobolo was paid, families were involved, and the bride was handed over, emphasising the evolving nature of customary law and the paramountcy of constitutional principles over rigid adherence to traditional rituals, particularly those potentially infringing on dignity and equality

Motsoatsoa v Roro 2011 (2) SA 324 (GSJ)

Summary: The court found that the applicant failed to prove the existence of a valid customary marriage because the handing over of the bride did not occur. The court dismissed the application with costs.

Ngwenyama v Mayelane 2012 (10) BCLR 1071 (SCA)

Summary: The court ruled that the first wife’s consent is not needed for a second customary marriage but emphasised that legal procedures (like court-approved contracts) must be followed in polygynous marriages.

Mayelne v Ngwenyama and Another 2013 (4) SA 415 (CC)

Summary: The Supreme Court of Appeal upheld the validity of a second customary marriage, noting that registration is not necessary, but court approval is required to regulate property rights in polygynous marriages.

Mbungela v Mkabi 2019 (1) SA 41 (SCA)

Summary: The court confirmed the validity of a customary marriage even without a formal celebration, since lobola was paid and there was a bridal transfer.

TPK v Minister of Home Affairs Case No: 052246/2023 (Pretoria High Court)

Summary: The court ordered the Department of Home Affairs to register a marriage posthumously, finding that refusing registration due to the husband’s death was unfair and contrary to the Act’s intent.

Conclusion

South African courts have repeatedly confirmed that customary marriages are legally valid even without registration, provided they comply with traditional customs. The judiciary has adopted a flexible, evolving view of custom and emphasized the importance of gender-sensitive interpretations, especially to protect women who may be disadvantaged by rigid or outdated practices. Polygynous marriages are recognized under the law but must follow specific legal processes to manage property rights fairly.

Despite these legal protections, many widows still face challenges. Families may deny the marriage to block inheritance claims, and Home Affairs officials may refuse registration due to misunderstandings or lack of documentation. This leaves surviving spouses vulnerable, especially when ceremonies were informal or incomplete. Although registration is not essential for validity, it remains crucial for asserting rights to inheritance, pensions, and spousal benefits. In such cases, the courts can and do intervene to ensure justice for those able to prove a valid customary marriage.