A Customary Marriage Is a Marriage

A customary marriage is a marriage. Not a lesser arrangement, not a cultural formality awaiting official blessing — a marriage recognised for all purposes in South African law.

And the fact that most needs stating first: failure to register a customary marriage does not affect its validity. If you were married under customary law and never got to Home Affairs, you are married. The certificate proves the marriage; it does not create it.

What flows from that is money. Who owns the house, who may sign for a loan, what happens on divorce, and what a second marriage does to the first — all of it is decided by rules that changed materially in 2021, and a great deal of what is written about this subject predates that change.

What makes a customary marriage valid

For a marriage entered into after the Act commenced, three things are required:

both prospective spouses must be over the age of 18;
both must consent to be married to each other under customary law; and
the marriage must be negotiated and entered into or celebrated in accordance with customary law.

Where a prospective spouse is a minor, both parents — or the legal guardian — must consent, and the Minister may in defined circumstances permit a marriage below 18.

One prohibition sits alongside: no spouse in a customary marriage may enter into a marriage under the Marriage Act while the customary marriage subsists, except through the conversion route the Act itself provides.

The Act also defines lobolo — "the property in cash or in kind, whether known as lobolo, bogadi, bohali, xuma, lumalo, thaka, ikhazi, magadi, emabheka or by any other name" that a prospective husband or the head of his family undertakes to give to the head of the prospective wife's family in consideration of the marriage. It is recorded when the marriage is registered.

Registration: a duty, not a condition

The spouses have a duty to ensure the marriage is registered, and either spouse may apply. The registering officer records the identity of the spouses, the date of the marriage, any lobolo agreed to, and the other prescribed particulars, and must issue a certificate of registration.

The statutory period for a marriage entered into after the Act is three months after the marriage is concluded — but the Minister may from time to time prescribe a longer period by notice. Periods have been extended more than once, and the most recently prescribed window ran to 31 August 2026. Whether a further period is currently open is worth confirming with Home Affairs rather than assuming either way.

Two things soften what that timing anxiety usually produces. Where a marriage was never registered, any person with a sufficient interest may apply to a registering officer to enquire into its existence. And, again, non-registration does not affect validity.

Registration still matters, and it is worth doing. A certificate is what a bank, a fund, an insurer or a court will ask for, and proving a marriage without one means proving negotiation and celebration by evidence, years later, often after somebody has died. The point is that the marriage exists either way.

A wife's status is equal, expressly

The Act says it in terms. A wife in a customary marriage has, on the basis of equality with her husband and subject to the matrimonial property system governing the marriage, full status and capacity — including the capacity to acquire assets and to dispose of them, to enter into contracts and to litigate — in addition to any rights and powers she may have at customary law.

That provision does a great deal of quiet work. It is the answer to any suggestion that a wife cannot open an account, hold property, sign a contract or sue in her own name.

One marriage: in community of property by default

A customary marriage in which neither spouse is a partner in any other existing customary marriage is a marriage in community of property and of profit and loss — unless the spouses specifically excluded those consequences in an antenuptial contract.

So the default is one joint estate, exactly as it is for a civil marriage concluded without a contract.

And the consequence people most need to know: the Act applies Chapter III of the Matrimonial Property Act to such a marriage. That is the chapter containing the consent rules. In practice it means the same restrictions apply — a spouse may not, without the other's written consent, deal with immovable property of the joint estate, enter as consumer into a credit agreement, or bind himself as surety, and for those acts the consent must be given separately for each act and attested by two witnesses.

A couple married under customary law without an antenuptial contract are therefore in precisely the position of a couple married in community at the magistrate's office, including at the bank.

Spouses in a post-Act monogamous customary marriage may also apply to court to change their matrimonial property system, under the same provision that applies to civil marriages.

More than one marriage: what changed in 2021

This is where the law was rewritten, and where older guidance is unreliable.

For a marriage entered into before the Act commenced, where a person is a spouse in more than one customary marriage, the spouses now have joint and equal ownership and other rights, and joint and equal rights of management and control, over marital property.

Those rights are exercised in a structured way:

over house property, by the husband and the wife of that house, jointly and in the best interests of the family unit constituted by that house; and
over family property, by the husband and all the wives, jointly and in the best interests of the whole family constituted by the various houses.

Each spouse retains exclusive rights over his or her personal property.

The Act leaves the meanings of marital, house, family and personal property to customary law, which is a real limitation on how precisely this can be described in the abstract — those categories differ between communities and are a question for someone who knows the applicable customary law.

Spouses in a pre-Act marriage may apply jointly to court to change the matrimonial property system, on the familiar test: sound reasons, sufficient written notice to creditors owed more than a prescribed amount, and no prejudice to anyone else. Where the husband is a spouse in more than one customary marriage, all persons with a sufficient interest — in particular his existing spouse or spouses — must be joined in the proceedings.

A further marriage requires a court order first

This is the provision that is most often ignored and matters most to an existing wife.

A husband in a customary marriage who wishes to enter into a further customary marriage after the Act commenced must apply to a court to approve a written contract regulating the future matrimonial property system of his marriages.

When considering that application, the court must:

where the existing marriage is in community of property or subject to the accrual system, terminate that system and effect a division of the matrimonial property;
ensure an equitable distribution of the property; and
take into account all the relevant circumstances of the family groups that would be affected.

It may allow amendments to the contract, grant the order on conditions, or refuse the application if it takes the view that the interests of any of the parties would not be sufficiently safeguarded.

And all persons with a sufficient interest — in particular the existing spouse or spouses and the prospective spouse — must be joined in the proceedings.

Read together, that is a substantial protection. A further marriage is not a private decision taken elsewhere; it requires a court, a division of what exists, and the participation of the woman already married.

Ending a customary marriage

A customary marriage may only be dissolved by a court, by a decree of divorce, on the ground of the irretrievable breakdown of the marriage — meaning the relationship has disintegrated to the point where there is no reasonable prospect of restoring a normal marriage relationship.

There is no customary-law route around that, and no separation that ends the marriage by itself.

On dissolution the court has the powers a divorce court has in a civil marriage, including in relation to maintenance and the division of assets. Where the husband is a spouse in more than one customary marriage, the court must take into account all relevant factors, including any contract or order made under the property-change and further-marriage provisions, and must make any equitable order that it deems just.

What to do

Register the marriage if it is not registered, and ask what period currently applies. Validity is not at risk either way, but the certificate is what institutions ask for.
Establish whether an antenuptial contract exists. Without one, a monogamous customary marriage is in community of property.
If you are in community, treat credit and suretyship as joint decisions, because the Matrimonial Property Act consent rules apply. Our guide to joint accounts and shared money covers the day-to-day mechanics.
Keep evidence of the negotiation and celebration — who was present, what was agreed, what lobolo was undertaken. This is what proves the marriage where there is no certificate.
If a further marriage is contemplated, understand that a court application, a division of the existing property, and the joinder of the existing wife or wives come first.
Make a will. The property rules above govern the marriage; what happens afterwards is a separate question, and our guide to wills is the starting point. Without one, the intestate rules decide.
Get advice on the customary-law categories if house, family and personal property are in issue. The Act deliberately leaves those meanings to customary law.

If a bond is caught up in a separation, our guide to divorce and the joint bond deals with that specific problem.

For everything else, start at our money guides.

Frequently asked questions

Is an unregistered customary marriage valid? Yes. Failure to register a customary marriage does not affect the validity of that marriage.

What makes a customary marriage valid? Both spouses must be over 18 and must consent to be married to each other under customary law, and the marriage must be negotiated and entered into or celebrated in accordance with customary law.

How long do I have to register? Three months after the marriage is concluded, or such longer period as the Minister prescribes by notice. Periods have been extended before; confirm with Home Affairs what applies now.

What property regime applies to a customary marriage? Where neither spouse is a partner in any other existing customary marriage, it is in community of property and of profit and loss, unless the spouses excluded those consequences in an antenuptial contract.

Do the consent rules apply to us? Yes, where the marriage is in community of property. Chapter III of the Matrimonial Property Act applies, so written consent is needed for things like credit agreements, suretyship and dealings in immovable property.

What are the rights of wives in a polygynous marriage entered into before the Act? The spouses have joint and equal ownership and other rights, and joint and equal rights of management and control, over marital property — exercised jointly over house property by the husband and the wife of that house, and over family property by the husband and all the wives.

Does a wife keep anything of her own? Yes. Each spouse retains exclusive rights over his or her personal property.

Can my husband simply marry another wife? Not simply. A husband who wishes to enter into a further customary marriage must apply to court to approve a written contract regulating the future matrimonial property system, and the existing spouse or spouses must be joined in those proceedings.

What must the court do on such an application? Where the marriage is in community or subject to accrual, terminate that system and effect a division of the property, ensure an equitable distribution, and consider all relevant circumstances of the affected family groups. It may also refuse the application.

How is a customary marriage ended? Only by a court, by a decree of divorce, on the ground of the irretrievable breakdown of the marriage.

Is lobolo recognised in law? The Act defines lobolo and requires any lobolo agreed to be recorded when the marriage is registered.

Can a wife in a customary marriage own property and sign contracts? Yes. She has, on the basis of equality with her husband and subject to the matrimonial property system, full status and capacity, including to acquire and dispose of assets, contract and litigate.