30 April 2021 | JP Louw
In South Africa, a customary marriage is defined as a marriage that has been concluded in terms of customary law. These marriages are valid in terms of the Recognition of Customary Marriages Act 120 of 1998 (Act).
Before the implementation of this Act, the wife in a customary marriage was subjected to her husband`s marital power (the husband was superior to the wife). The legislation that applied to customary law restricted the wife`s right to own property, the right to obtain credit, to act in a contractual capacity, and to a certain extend limit their access to courts. 
The Act only came into effect on 15 November 2000, but the traditional laws and rituals remain relevant. The objective of the Act is to confirm the recognition of customary marriages, as well as the requirements to regulate, register and dissolve marriages concluded in terms of customary rituals. Furthermore, it strives to confirm the equal status of the capacity of the spouses in the marriage.
An existing marriage in terms of customary law, at the date of commencement of the Act, is recognized as a valid marriage in terms of the Act. This view is accordingly upheld when a person is a spouse in more than one customary marriage, which was concluded before the Act came into effect.
For a customary marriage to be valid, the Act requires the relevant negotiations with regards to the marriage to take place, as well as for it to be celebrated according to customary law. Apart from this requirement, both parties must be over the age of 18 and must give consent to the marriage. In the case where one of the parties is still a minor, the consent of the parent/legal guardian is required. Neither of the parties may already be joined in a civil marriage. The marriage must be negotiated and entered into or celebrated in accordance with costomary law.
A customary marriage must be registered at the Department of Home Affairs within three (3) months after being concluded. The registration request can be filed with the registering officer by any of the spouses. If the registering officer is satisfied that a customary marriage had been concluded, the marriage is registered by recording the spouses` identity numbers, the date of the marriage, and any lobola agreements. The registering officer will then issue a certificate to the spouses. However, failure to register the marriage does not have any effect on the validity thereof.
The Act drastically changed the personal status of wives, as they now have equal legal standings with their husbands. They now have full legal capacity to obtain and sell assets, enter into and conclude contracts, and litigate if the need arises.
However, a customary marriage entered into before the implementation of the Act will accordingly be governed by the customary law with regards to wives’ proprietary rights (the rights towards ownership of property). The family head, being the husband, will have custody and control over the property of his wife. The matrimonial property system of such a marriage can now be amended by the spouses jointly, by applying for leave hereto from the High Court.Subsequently, if the Court is satisfied that all the requirements have been met, an order can be obtained that the existing matrimonial property system will no longer be effective and that spouses may enter into and register a Postnuptial Contract.
A monogamous customary marriage (marriage between one husband and one wife), entered into after the Act, is concluded in community of property. This effectively means that the two parties will have a joint estate. The parties can however also elect to be married out of community of property, in which case they will need to enter into an antenuptial contract.
For a husband to enter into a second or further customary marriage, he must apply to the High Court to approve the contract regulating the matrimonial regime of his first and following marriages. This serves as protection for the spouses’ matrimonial rights. If a marriage is concluded without obtaining an order from the High Court, it will still be valid, but it will be concluded out of community of property.
A customary marriage can be dissolved with a decree of divorce. A decree of divorce must be obtained from the court on the grounds that the marriage had broken down irretrievably.  The consequences of such a divorce are in line with that of sections 7, 8, 9, and 10 of the Divorce Act 70 of 1979(Divorce Act). A court can now dissolve a customary marriage in line with the Divorce Act and make orders according to its discretion in relation to the following: the division of assets, maintenance, the redistribution of assets, and the forfeiture of certain benefits. These orders can now also be granted in respect of marriages concluded before the commencement of the Act.
Women who entered into customary marriages whether monogamous or polygamous have equal rights and ownership over matrimonial property due to the Amended bill of 30 July 2019.
It is evident that, although South Africa has a wide spectrum of recognized customs, everyone`s rights as outlined in our Constitution, should be respected and protected. These developments made long strides in confirming that men and women are equal in marriages, whether civil or customary. The Act made it possible for customary marriages to be registered and to regulate the rights of all parties involved in the marriage during the marriage, a divorce, or dissolution.
 Section 1(iii) of the Recognition of Customary Marriages Act 120 of 1998
 Recognition of Customary Marriages Act 120 of 1998
 Black Administration Act 38 of 1927
 Section 2(1) of the Recognition of Customary Marriages Act 120 of 1998
 Section 3(1)(b) of the Recognition of Customary Marriages Act 120 of 1998
 Section 7(4)(a) of the Recognition of Customary Marriages Act 120 of 1998
 Section 7(6) of the Recognition of Customary Marriages Act 120 of 1998
 Section 8 of the Recognition of Customary Marriages Act 120 of 1998
 Divorce Act 70 of 1979
 Gumede v President of the Republic of South Africa and Others 2009 (3) SA 152 (CC)