A customary marriage in South Africa refers to a marriage that is negotiated, concluded or celebrated according to indigenous African customary law.
With customary marriages, there is often some confusion around the legal right to make claims on the matrimonial property after the marriage has ended.
Is Customary Marriage in Community of Property?
In terms of section 7 of the Recognition of Customary Marriages Act, all customary marriages are automatically in community of property, unless the couple have an antenuptial contract.
Without an antenuptial contract in place, and on dissolution of the marriage, both spouses are entitled to an equal share of the joint estate.
In order for new customary marriages to be recognised as a valid marriage, it must meet the following requirements:
Customary marriages must be registered at any office of the Department of Home Affairs or through a designated traditional leader where there are no accessible Home Affairs offices.
Registration must happen within 3 months of the marriage taking place.
In order to register a customary marriage in South Africa, the following people must present themselves either at a Home Affairs Office or a traditional leader:
When one or both of the spouses is a minor, the parents of the minor should be present when requesting to register the marriage.
Because customary marriages are by default in community of property, both spouses are entitled to equal division of the joint matrimonial estate.
Failure to register a customary marriage doesn’t mean that the marriage is not valid and, according to the Act, such marriages may only be officially dissolved by a Court through a decree of divorce.
For more information about sharing of joint estate between spouses who dissolve a customary marriage in South Africa, contact our attorneys in Johannesburg and Cape Town.
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