In the eyes of the law, are customary marriages equal to civil marriages?

The long answer

The Recognition of Customary Marriages Act of 1998 (RCMA) which became law in 2000, gives women in customary marriages the same rights as women in civil marriages.

The 2020 amendments to the 1998 Recognition of Customary Marriages Act mean that a woman in a customary marriage has the same legal rights as her husband to buy and sell property, to be a party to contracts, to inherit and sell assets, and to go to court. 

Since the Constitutional Court judgment of 30 November 2019, any customary marriage after the Recognition Act came into force in 2000 is held to be in community of property unless the couple has taken out an antenuptial contract. That means that if you divorce, the joint estate (all the assets and all the debts) is divided between the couple equally.

So all customary marriages are considered to be marriages in community of property now.

The way it used to work in customary marriages was that the oldest male relative would act as the family guardian when a man died without making a will. Women could not inherit. But in 2004 the Constitutional Court found in the case of Bhe and Others v Khayelitsha Magistrate that it was unconstitutional to discriminate against women and changed the law. The court said that if a man died intestate (without making a will), his property must be distributed in terms of the Intestate Succession Act of 1987.

The Intestate Succession Act lays down the order in which property is inherited when someone does not leave a will. This is the order:

• The spouse of the deceased

• The descendants of the deceased

• The parents of the deceased (Only if the deceased died without surviving spouse or descendants)

• The siblings of the deceased (Only if one or both parents are predeceased).

The Intestate Succession Act should be read in such a way that it can accommodate cases where the deceased was a husband in polygamous customary union:

• When the deceased left only spouses and no descendants, the wives will inherit the estate in equal shares.

• When the deceased left spouses and descendants, the spouses and descendants will inherit the estate in equal shares, but

  • Each wife should inherit at least R250,000

  • When the estate is not large enough to allow each wife to inherit R250,000, the spouses will inherit the estate in equal shares while the descendants will not receive anything.

Home Affairs requires customary marriages to be registered within three months of the marriage taking place. If you register your customary marriage with Home Affairs, you are given a marriage certificate. However, if the marriage is not registered, it does not mean that it is not a valid marriage. It simply means that it is harder to prove without a marriage certificate. 

In South Africa, many people who married under customary law are unaware that separation or desertion does not constitute a divorce. In terms of Section 8(1) of the RCMA, a customary marriage can only be ended by a court order of divorce on the grounds of irretrievable breakdown of the marriage. 

And in order for a court to grant a divorce order, a marriage certificate must first be obtained from Home Affairs. This means that whatever proof of the marriage exists – lobola letters, photographs, the fact of the elders all signing and acknowledging the separation – must be submitted to Home Affairs to obtain a marriage certificate, without which you will not be able to apply for a divorce order. If Home Affairs does not agree to issue the marriage certificate on the evidence, you would have to apply to the court to establish the truth of the marriage and for the court to order Home Affairs to issue a marriage certificate.

So yes, although civil marriages and customary marriages are different, they are equal in terms of the law.

Wishing you the best,
Athalie