Legal Articles

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.

Customary Marriage in South Africa

In order for new customary marriages to be recognised as a valid marriage, it must meet the following requirements:

• Both spouses must be older than 18 years
• The marriage must be negotiated, entered into or celebrated according to customary law
• If one spouse is a minor, the parents or legal guardians of the spouse must consent to the marriage
• Both spouses must also consent to the marriage

Registering Customary Marriages in South Africa

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:

• At least one competent witness from the bride’s family
• At least one competent witness from the groom’s family
• Both spouses with copies of their valid identity books
• Lobola agreement if available
• And/or the representative of each of the families

When one or both of the spouses is a minor, the parents of the minor should be present when requesting to register the marriage.

Unregistered Customary Marriage Divorce

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.

Van Deventer & Van Deventer Incorporated – Family Law Attorneys in Cape Town and Johannesburg

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.