Recognition of Customary Marriages

This article is a follow up to Kaya FM’s talk show hosted by Masechaba Moshoeshoe’s on Monday, 24 November 2008 where one of the guests was our own Zola Majavu, who discussed recognition of customary marriages.

I wish to emphasize the following points:

• In terms of Recognition of Customary Marriages Act 120 of 1998, customary law means “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those people”. Accordingly, “customary marriage means a marriage concluded in accordance with customary law”.


• A marriage concluded in accordance with customary law is bound to be recognized in terms of the Recognition of Customary Marriages Act;


• Recognition of Customary Marriages Act does not outline the requirements of a customary marriage but rather outlines the requirements for recognition of a customary marriage; namely, prospective spouses must both be above the age of 18yrs, must both consent to be married to each other under customary law, the marriage must be negotiated and entered into or celebrated in accordance with customary law.


• Civil marriage and a customary marriage are together incompatible. Simply put, one cannot marry in terms of customary law and later enter into civil marriage. There reverse is also true.


• Though not mandatory, registration of a customary marriage with the Department of Home Affairs is advisable.

Many callers were keen to know the process of registering a customary marriage. As explained during the show, one should approach the Department of Home Affairs to register the marriage. There should not be any problem if the registering persons have the following:

• Copies of their ID’s;


• Proof of delivery (not payment) of Mahadi;


• Witness(es)

Problems of registration often arise when there is a dispute of whether customary marriage was entered into or not. This dispute is often in two forms, namely;

• When the other spouse has passed on (died) and his / her family refuses the surviving spouse to inherit from the deceased’ estate; and
• When one spouse institutes a divorce with the sole purpose of inheriting from the estate of the other spouse.

The officials at the Department of Home Affairs are not trained to interrogate such disputes, only the Central Divorce Courts (or the High Courts) have powers to entertain such disputes. Thus, a party wanting to register the marriage approaches the Central Divorce Court for that purpose. Members of the public are particularly advised to consult lawyers with the necessary expertise to handle such applications for them.

By: Teboho Seleke