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In this guide
By Onah Attorneys Inc • Updated July 2026 • Legal information, not a substitute for advice on your specific matter.
Millions of South Africans are married under customary law — and thousands discover at death or divorce that the marriage’s paperwork gap costs them everything. The Recognition of Customary Marriages Act gives full legal status to customary marriages; the traps live in validity, registration and property. Here is the law as it actually bites.
What makes a customary marriage valid
Under the RCMA: both spouses 18+, both consent, and the marriage is negotiated and celebrated per customary law — lobola negotiation and the celebration/handover practices of the community concerned. Full lobola PAYMENT is not the validity test (courts have said so repeatedly); the negotiation and celebration are. Every family fight at a funeral starts here: gather your evidence of the celebration while everyone is alive and friendly.
Registration: not required for validity — required for survival
An unregistered customary marriage is still VALID — but proving it to banks, pension funds, the Master and Home Affairs without the certificate means affidavits, witnesses and litigation at the worst moments. Register at Home Affairs (either spouse can; deadlines in the Act are treated leniently but don’t test it). The certificate converts your marriage from a factual dispute into a document.
Property: in community by default
A monogamous customary marriage is IN COMMUNITY OF PROPERTY unless an antenuptial contract says otherwise — same as civil marriage, same consequences: joint estate, shared debts, half each at divorce or death. The landmark judgments (Gumede and successors) equalised older marriages too. Spouses wanting separate estates need the ANC before the celebration, exactly like civil marriages.
Polygamous marriages
A husband entering a further customary marriage must obtain a COURT-APPROVED contract regulating the property of all marriages (s7(6)) — protecting existing wives’ shares. In practice this is widely skipped, creating tangled estates; the courts have protected later wives’ rights despite non-compliance, but litigation is the price. Any polygamous household needs this order and a will — urgently.
Divorce and death
Customary marriages divorce through the COURTS like any marriage — irretrievable breakdown, division per the regime, maintenance and children under the same statutes. No ‘traditional divorce’ by returning lobola dissolves it legally. At death: the surviving customary spouse is a spouse for intestate succession and maintenance claims — WITH proof. The certificate (or the evidence file) is the whole ballgame; the second family who registered nothing loses to the paperwork every week in the Master’s office.
Frequently asked questions
Is lobola alone a marriage?
No — lobola negotiation plus the customary celebration/handover constitute the marriage; a lobola agreement with no celebration is an engagement in law’s eyes. The celebration evidence is decisive.
We never registered — is my marriage real?
Valid yes, provable painfully. Register now at Home Affairs; if a spouse has died, a court declaration route exists — harder, but done regularly.
Can I have a white wedding and a customary marriage?
A civil marriage between the SAME spouses can coexist/convert — but a civil marriage to a THIRD party while a customary marriage subsists is void territory. Sequence matters; get advice before the second ceremony.
Does my customary wife inherit if I die without a will?
Yes — as a spouse under intestate succession (R250k or a child’s share minimum). Polygamous estates split the spousal share. A will remains the only way to control it properly.
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