Are Customary Marriages in South Africa In or Out of Community of Property?

 Written by Roy Bregman, an admitted attorney with over 51 years' experience in South African matrimonial and customary law.

Key takeaways

·        Customary marriages before 15 November 2000 are generally governed by the older customary-law property system, subject to later constitutional and court developments.

·        Customary marriages entered into on or after 15 November 2000 are in community of property, unless the parties validly concluded an antenuptial contract before the marriage.

·        Courts have increasingly protected spouses, especially women, by recognising equality and proprietary rights in customary marriages.

·        Spouses in unregistered customary marriages should register the marriage as soon as possible, and in any event before 31 August 2026, to reduce legal uncertainty and protect both spouses' rights. Failure to comply with legal requirements, including registration, can create serious evidential, administrative and financial risks.

Introduction

Customary marriages in South Africa are regulated by the Recognition of Customary Marriages Act 120 of 1998 (RCMA), which came into operation on 15 November 2000. The Act gave full legal recognition to customary marriages and aligned this area of law with constitutional values such as equality and dignity.

A key aspect of the RCMA is the matrimonial property regime applicable to customary marriages:

·        Section 7(1) preserves the proprietary consequences of marriages concluded before the Act.

·        Section 7(2) provides that marriages concluded after the Act are automatically in community of property, unless the parties agreed otherwise through an antenuptial contract before marriage.

·        Section 7(6) regulates further marriages in polygynous unions and requires court approval of a written contract dealing with the matrimonial property system.

Registration deadline

Parties should also be aware of the current registration drive for unregistered customary marriages. A Government Gazette notice extended the period for registration and set 31 August 2026 as the deadline for registration of unregistered customary marriages.

Although failure to register does not necessarily make an otherwise valid customary marriage void, non-registration can cause major practical problems. In practice, an unregistered marriage may be difficult to prove and may create disputes or delays relating to inheritance, pension benefits, property rights, divorce proceedings, maintenance claims, and dealings with the Department of Home Affairs.

For that reason, spouses in unregistered customary marriages should register the marriage as soon as possible, and in any event before 31 August 2026, to reduce legal uncertainty and protect both spouses' rights.

Case law developments

Gumede v President of the Republic of South Africa (2009)

Facts: The applicant was married under customary law before 2000. Under the traditional system, her husband controlled the family property, and she had no ownership rights.

Decision: The Constitutional Court held that the provision was unconstitutional and that monogamous customary marriages entered into before 2000 must be treated in a way that protects equality and proprietary rights.

Ramuhovhi v President of the Republic of South Africa (2017)

Facts: The case involved a polygynous customary marriage entered into before 2000.

Decision: The Court confirmed that women in such marriages must enjoy equal proprietary protection.

Mayelane v Ngwenyama (2012)

Facts: A husband entered into a second customary marriage without informing the first wife.

Decision: The Court held that the consent of the first wife is required in the applicable customary-law context.

MM v MN (2013)

Facts: The husband entered into a further marriage without proper court approval of a matrimonial property contract.

Decision: The Court held that the situation created serious property uncertainty, underscoring the importance of compliance with statutory requirements.

Conclusion

The legal position has developed significantly. Post-2000 customary marriages are in community of property by default unless excluded by antenuptial contract, while pre-2000 marriages require a more careful analysis in light of customary law and constitutional case law.

Registration is also now especially important. Even where a marriage may still be legally valid without registration, failure to register before 31 August 2026 may create serious proof and enforcement difficulties in practice.

Frequently asked questions

Are all customary marriages now in community of property?

No. It depends mainly on when the marriage was concluded and whether any valid antenuptial arrangement applies.

Can spouses change their matrimonial property system?

Yes. In appropriate cases, this can be done with court approval.

What happens if a husband takes another wife without court approval?

The further marriage may create validity and property consequences, especially in relation to the matrimonial property system and the rights of existing spouses.

What happens if a customary marriage is not registered by 31 August 2026?

The marriage may still be capable of legal recognition if it was otherwise valid, but the parties may face serious difficulty proving it and enforcing rights arising from it. This can affect estates, property transfers, pensions, maintenance, and divorce proceedings.