Authored By: Pheladi Atlegang Aphane
North-West University
INTRODUCTION
South Africa has multiple marriage systems recognised by the law, this is the effect of legal pluralism. South Africa’s legal pluralism is a result of colonialism, apartheid and constitutional transformation. Before colonialism and apartheid, African communities already had well developed customary marriage systems that were socially and legally recognised by their communities.[1] However, when the ships arrived in the Cape, they arrived with new laws, laws that were incongruous with customary laws. Apartheid law only recognised civil marriages and considered customary marriages inferior, and to a certain extent “non-existent”.[2] However, the advent of the South African Constitution 1996 erased the superior and inferior idea amongst South Africans. It provided for the recognition of customary law as a legal system, protected cultural and religious practices and provided that everyone is equal before the law[3]. Legal plurality is therefore necessary in upholding the constitutional rights of the people. As a result, South African couples have the freedom to choose who they marry and under which circumstances, without limitations on the grounds of sex, race, background or even beliefs. However, many couples do not understand the legal consequences attached to their decision to marry. The plurality in our law often creates confusion and the technicalities often present misunderstanding. Pluralism created freedom and recognition, but it also led to conflicting property rules, dual marriages, registration confusion and legal illiteracy. This article aims to define and distinguish the different marriage regimes; the consequences attached to each one and to simplify the concept of marital property systems and antenuptial contracts.
Civil Marriage and the Marriage Act 25 of 1961
The Marriage Act 25 of 1961 regulates monogamous marriage for opposite sex couples; such a marriage is considered a civil marriage. The act provides that the parties must be at least 18 years, freely consent and not be close relatives as defined in the act for the marriage to be valid. The marriage must be solemnised by a marriage officer as defined in the act with two competent witnesses present. The couple, marriage officer and the two competent witnesses must sign a marriage register as soon as solemnisation is finalised. The marriage must thereafter be registered with the Department of Home Affairs. The couple will then receive a marriage certificate as proof of their civil marriage[4]. It is important to note that once couples have entered a civil marriage the default rule is that they are married in community of property[5].
Customary Marriage and the Recognition of Customary Marriages Act 120 of 1998
The Recognition of Customary Marriages Act 120 of 1998 regulates monogamous and polygamous marriages solemnised under customary law practices. The requirements for a customary marriage to be valid include consent from both parties, negotiation and payment of lobola (bride price) and celebration according to custom.[6] Although celebration practices may differ from culture to culture, it remains precedent in our law that lobola and celebration result in a marriage legally recognised. Once negotiation, lobola and celebration is completed in a monogamous customary marriage, the couple is legally married in community of property by default. Although registration of a customary marriage with the Department of Home Affairs is not mandatory, it is best to register it, as this is legal proof of its existence. This is especially essential when it is a polygamous customary marriage, where there are multiples spouses and the order of marriage or the validity of marriage could be disputed. To enter a polygamous marriage consent from the first wife along with a court approved contract is essential. Without fulfilling these two requirements, any marriage thereafter is invalid[7]. It is also important to note that you cannot enter a polygamous civil marriage or civil union. Polygamous marriages are exclusive to customary marriages governed by the Recognition of Customary Marriages Act 120 of 1998[8].
Civil Unions and the Civil Union Act 17 of 2006
The Civil Union Act 17 of 2006 regulates same-sex and opposite-sex legal relationships by way of marriage or civil partnership. A valid civil union requires the consent of two parties who are both at least 18 years old to enter a marriage or civil partnership solemnised by a marriage officer as defined in the act. The couple must thereafter declare their intention to enter a civil union in writing; in front of the marriage officer and two competent witnesses. The civil union must be registered with the Department of Home Affairs; the couple will receive a certificate as proof of the legally recognized union. Once a civil union is registered the couple is married in community of property by default[9]. An individual cannot exist in more than one civil union; a civil union is exclusively monogamous[10].
Religious Marriages and Permanent Life Partnerships
Current legislation in South Africa does not govern or regulate any religious marriages. However, section 31 of the Constitution provides that everyone has the right to enjoy their culture and practise their religion[11]. As a result, individuals may conclude their religious marriages. However, it needs to be solemnised by an authorised marriage officer, and they need to legally formalise their marriage or civil union according to the Marriage Act or Civil Unions Act respectively. This is the only way to register a religious marriage so that the law considers the parties as spouses or partners[12]. Once a religious marriage is solemnised and registered according to the applicable legislation, the parties are married in community of property by default. Failure to register the marriage or civil union under the relevant legislation makes the marriage invalid and places it in the same position as unmarried permanent life partners. Permanent life partners are parties who live together but are not married or in a civil union in terms of any legislation. Due to its lack of registration and recognition in law, parties in a life partnership have very few legal rights, unless parties conclude a universal partnership agreement[13].
Marital Property Systems
Marital property systems in South Africa determine how assets and debts are regulated during and after marriage. There are three applicable categories: in community of property, out of community of property with accrual and out of community of property without accrual[14]. When parties enter a marriage or civil union the default system applied is in community of property, where assets and debts are shared equally between spouses during and after marriage[15].
Couples need to draft, sign, execute and register an antenuptial contract if they wish to not use the default system. An antenuptial contract or prenup is a legally binding contract that outlines the rights and obligations of each spouse, and the financial management of all assets and debts during and after marriage[16]. Antenuptial contracts provide an alternative for parties and uphold the right to freedom of contract even within marriage. Parties can specify from one of the three systems which one they want operating in their marriage using the antenuptial contract. It is further important that the antenuptial contract be drafted well in advance before the parties walk down the aisle or negotiate lobola. An antenuptial contract concluded or registered after solemnising marriage or paying lobola is invalid because the couple will have concluded their marriage in community of property by default[17]. The content, registration and timing of the antenuptial contract is of essence.
Marriage out of community of property with accrual is when spouses have their personal estates separate during marriage but the growth of their estate at the end of the marriage is shared between them. While marriage out of community of property without accrual is when spouses keep their personal estates separate during and after marriage[18]. The antenuptial contract needs to be concluded before marriage by both parties, executed by a notary and registered in the deeds office to be valid.
Possibilities and Pitfalls of Marriage
Section 21 of the Matrimonial property system act 88 of 1984 makes provision for couples to change their matrimonial property system subject to mutual consent, sound reasons for the change, sufficient notice of the change to their creditors and that the change will not prejudice anyone[19]. Furthermore, antenuptial contracts may be altered after marriage, subject to court approval, this applies strictly to alteration of an existing and valid antenuptial contract. Antenuptial contracts are considered insurance against harm and risk that can happen during the subsistence of marriage.
Like the various marriage regimes, antenuptial contracts are a tool to protect one’s dignity, reputation, inheritance, estate and even their families[20]. It is therefore important that couples discuss their estate and the marriage regime best suitable for them before walking down the aisle or negotiating lobola. It is also vital that parties understand which system is best for them because a civil marriage, civil union and life partnership are exclusively monogamous. A party cannot exist in more than one marriage or union under these systems; the second concluded marriage or union will therefore be invalid. It is only a customary marriage that has potential to be polygamous. A couple cannot have several marriages under different marriage systems either as bigamy is an offence in South Africa[21].
Conclusion
A civil marriage, civil union, religious marriage and life partnership are exclusively monogamous, while customary marriages have the potential to be polygamous. There may not be statute regulating religious marriages and life partnerships, but case law and the Constitution make room for their existence and validity. The default matrimonial property system applicable to solemnised marriages and unions is in community of property. However, couples can escape default by registering antenuptial contracts where they select out of community of property with accrual or without accrual to be the operating matrimonial property system. The detriment of such uninformed decisions comes to reality when individuals are faced with insolvent estates, divorce and inheritance matters: and deceased estates issues. And although legal pluralism is what makes a diverse nation like South Africa thrive, legal systems sometimes contradict and overlap. This can be overwhelming and confusing. To avoid disappointment, it is always best to know the available options; legal literacy and timeous planning and where applicable, correcting is essential. Plurality does not exist with the aim to mislead or take advantage of the vulnerable and illiterate. But rather it exists to empower and make room for everyone, regardless of their differences.
BIBLIOGRAPHY
Legislation
Civil Unions Act 2006
Marriages Act 1961
Matrimonial Property Systems Act 1984
Recognition of Customary Marriages Act 1998
The Constitution of the Republic of South Africa 1996
Case Law
Bhe and Others v Magistate, Khayalitsha and Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004)
N.N and Others v B.N and Others (3932/2024) [2025] ZAECMHC 46; [2025] 4 All SA 197 (ECM) (5 June 2025)
Literature
Anderson J, Family Law in South Africa: Private Law (2nd edition, Oxford University Press Southern Africa, 2021)
Rautenbach C, Introduction to Legal Pluralism in South Africa (6th edition, LexisNexis, 2021)
Journal Articles
Andre Scott Attorneys, “ South African Marriage Laws in 2025: What Changed and What You Must Know” (2025) South Africa Marriage Laws in 2025 accessed 20 February 2026
Andrew Scott Attorneys, “ Types of Marriages in South Africa: What Every Couple Needs To Know” (2023) Types of Marriages in South Africa Explained | Andrew Scott Attorneys accessed 20 February 2026
[1] Christa Rautenbach, Introduction to Legal Pluralism in South Africa (6th edition, LexisNexis, 2021) 150.
[2] Julia Anderson, Family Law in South Africa: Private Law (2nd edition, Oxford University Press Southern Africa, 2021) 10.
[3] Constitution of the Republic of South Africa 1996, Chapter 2.
[4] Civil Marriages Act 1961.
[5] Julia Anderson, Family Law in South Africa: Private Law (2nd edition, Oxford University Press Southern Africa, 2021) 67.
[6] Recognition of Customary Marriages Act 1998.
[7] Bhe v Magistrate, Khayalitsha 2005 (1) SA 580 (CC).
[8] Julia Anderson, Family Law in South Africa: Private Law (2nd edition, Oxford University Press Southern Africa, 2021) 150.
[9] Civil Unions Act 2006.
[10] Julia Anderson, Family Law in South Africa: Private Law (2nd edition, Oxford University Press Southern Africa, 2021) 160.
[11] Constitution of the Republic of South Africa 1996, s 31.
[12] Andrew Scott Attorneys, “ Types of Marriages in South Africa: What Every Couple Needs To Know” (2023) Types of Marriages in South Africa Explained | Andrew Scott Attorneys accessed 20 February 2026.
[13] Andre Scott Attorneys, “ South African Marriage Laws in 2025: What Changed and What You Must Know” (2025) South Africa Marriage Laws in 2025 accessed 20 February 2026.
[14] Julia Anderson, Family Law in South Africa: Private Law (2nd edition, Oxford University Press Southern Africa, 2021) 100.
[15] Marriages Act 1961.
[16] Andrew Scott Attorneys, “ Types of Marriages in South Africa: What Every Couple Needs To Know” (2023) Types of Marriages in South Africa Explained | Andrew Scott Attorneys accessed 20 February 2026.
[17] Julia Anderson, Family Law in South Africa: Private Law (2nd edition, Oxford University Press Southern Africa, 2021) 160.
[18] Julia Anderson, Family Law in South Africa: Private Law (2nd edition, Oxford University Press Southern Africa, 2021) 100.
[19] Matrimonial Property Act 1984, s 21.
[20] Andrew Scott Attorneys, “ Types of Marriages in South Africa: What Every Couple Needs To Know” (2023) Types of Marriages in South Africa Explained | Andrew Scott Attorneys accessed 20 February 2026.
[21] N.N and Others v B.N and Others [2025] ZAECMHC 46 [2025] 4 All SA 197.
