Customary marriages are fully recognised in South Africa under the Recognition of Customary Marriages Act 120 of 1998. These marriages carry the same legal status as civil marriages and have significant financial, proprietary, and constitutional implications. Understanding the structure and consequences of a customary marriage is essential, particularly where parties are considering asset protection or an antenuptial contract.
Customary marriages operate within a dual framework of customary law and statutory law. While cultural practices remain central to their formation, the legal consequences are governed by constitutional principles and national legislation. This page provides general educational guidance.
A customary marriage entered into after 15 November 2000 is, by default, in community of property unless a valid antenuptial contract was concluded before the marriage. This means that both spouses share a joint estate and are jointly liable for debts incurred during the marriage.
The joint estate includes assets acquired before and during the marriage, subject to limited exceptions. Because financial consequences arise automatically at the moment the marriage comes into existence, proper planning must occur before the marriage is concluded.
In VVC v JRM and Others [2026] ZACC 2, the Constitutional Court clarified that a customary marriage is regarded as a single, continuous marriage. Where spouses later conclude a civil marriage with each other, the customary marriage does not terminate or restart. The matrimonial property regime therefore remains fixed at the time the customary marriage originally came into existence.
The Court confirmed that an antenuptial contract must be concluded before the customary marriage. An antenuptial contract signed after the marriage has already been concluded is not recognised as a valid antenuptial contract. Changing a matrimonial property system after marriage generally requires a formal court application in terms of section 21 of the Matrimonial Property Act 88 of 1984.
The following sections address additional areas frequently raised by couples entering into or already married under customary law.
Lobola negotiations are culturally significant and often symbolise the union of families. However, legal validity does not depend solely on payment of lobola. Courts assess whether the marriage was entered into in accordance with customary law, whether both parties consented, and whether the union was recognised within the relevant community.
The payment of lobola alone does not automatically create a legally recognised marriage. The broader customary context and mutual intention of the parties are critical considerations.
A customary marriage may only be dissolved by a court of law. Informal family separation, relocation, or traditional discussions do not legally terminate the marriage. Upon divorce, the applicable matrimonial property regime determines how assets and liabilities are divided.
Where the marriage is in community of property, the joint estate is generally divided equally. Maintenance obligations and matters relating to children are determined in accordance with statutory and constitutional principles.
Customary law permits polygamous marriages, but statutory safeguards exist to ensure financial fairness and protection for all spouses. A husband intending to enter into a further customary marriage must apply to court for approval of a written contract regulating the matrimonial property system of the marriages.
This safeguard protects existing spouses and promotes legal certainty. Failure to comply may result in financial disputes and uncertainty.
Parties intending to marry under customary law may conclude an antenuptial contract before the marriage in order to marry out of community of property. The contract must be properly executed before a Notary Public and registered to be legally effective.
As confirmed by the Constitutional Court, an antenuptial contract signed after a customary marriage has already been concluded is not legally valid as an ANC. Any alteration to the property regime after marriage requires a formal court application.
Determining the appropriate approach depends on individual circumstances and should be considered carefully before marriage.
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Case reference: VVC v JRM and Others [2026] ZACC 2.
Legislative references: Recognition of Customary Marriages Act 120 of 1998;
Matrimonial Property Act 88 of 1984.
This page provides general legal information only and does not constitute legal advice. Individual circumstances differ and should be assessed during consultation.