Recognizing Customary Marriages in South Africa: A Case for Mandatory Registration to  Protect Inheritance Rights

In South Africa, traditional marriages—known as customary marriages—are legally recognized.¹ But many of these marriages are not registered with the government. This causes problems,  especially when someone dies and people argue about who should get their things. The article  looks at how the law, court decisions, and community practices deal with this issue. It says  registration rules should be followed more strictly and suggests changes to protect spouses in  customary marriages, so they are treated fairly like those in civil marriages.

Introduction

South Africa’s diverse cultural landscape includes numerous customary practices, among which  customary marriages remain prevalent, particularly in rural areas.² These marriages, rooted in  tradition and communal practices, were granted legal recognition through the Recognition of  Customary Marriages Act.³ While this legislation marks a progressive step, a critical challenge  persists: the lack of formal registration of such marriages.

This gap has led to legal uncertainty, especially in inheritance disputes where surviving spouses or  children are denied claims due to the absence of official marriage records. In contrast, civil  marriages enjoy automatic recognition and easier enforcement of spousal rights. The disparity  creates vulnerability for those in unregistered customary unions.⁴

This article argues for policy and legal reforms aimed at treating customary and civil marriages  equally, particularly by ensuring registration is mandatory and accessible. It explores the  implications of non-registration on inheritance, analyses current laws and court rulings, and  suggests reforms to protect vulnerable parties in customary marriages.

Research Methodology

This article adopts a doctrinal legal research approach, examining statutes such as the  Recognition of Customary Marriages Act, the Intestate Succession Act, and relevant case law  including MM v MN and Another 2013 (4) SA 415 (CC) and Ramuhovhi and Khashane v Minister  of Home Affairs and Others 2024 (5) SA 242 (GP). Academic journals, government reports, and  media sources are also reviewed to support the analysis and provide real-world context.

Main Body

Legal Framework

The Recognition of Customary Marriages Act was introduced to give legal recognition to  marriages conducted under African customary law. According to this Act, any customary marriage  entered after 15 November 2000 must be registered within three months at the Department of  Home Affairs. This registration process helps create an official record of the marriage.⁵

However, it is important to understand that failing to register the marriage does not make it invalid.  As long as the marriage was properly negotiated, celebrated, or concluded according to the customs  of the parties involved, it is still considered legally valid, as stated in Section 2 of the RCMA,  which emphasizes that registration is a formality, not a requirement for validity.⁶

This approach is respectful of cultural practices and traditions, but it also creates legal uncertainty.  One of the biggest challenges arises when someone needs to prove the existence of a customary  marriage, especially after the death of a spouse. These situations often become complicated during  inheritance disputes, where the surviving spouse may struggle to show that the marriage was  valid.⁷

Under the Intestate Succession Act 81 of 1987, spouses in valid marriages—including customary  marriages—are entitled to inherit from each other if one dies without a will. But if the marriage  was not registered, it can be very difficult to prove its validity in court. As a result, surviving  spouses may be left vulnerable and excluded from inheriting, even if they were genuinely married  under customary law.⁸

Judicial Interpretation

In the case of MM v MN and Another, the Constitutional Court ruled that for a second customary  marriage to be legally valid, it must meet both the requirements of customary law and the statutory  provisions outlined in the Recognition of Customary Marriages Act. The Court found that because  the second marriage had not been properly registered and did not follow the correct procedures, it  could not be considered valid under South African law.⁹

In Khashane v Minister of Home Affairs and Others 2024 (5) SA 242 (GP), the applicant sought a  court order that included, among other things, condonation for the late registration of her  customary marriage under section 4 of the Recognition of Customary Marriages Act (RCMA). The  relationship began in 1990 when the deceased expressed his intention to marry her. Lobola negotiations followed, and by 1993, she was formally received into his family as a daughter-in law. Both the applicant and the deceased’s sister affirmed these events through sworn affidavits.

The applicant explained that she had been unaware of the legal requirement to register the marriage  and had therefore never done so. The RCMA mandates that all customary marriages predating its  enactment in 1998 must be registered, and it outlines procedures and timeframes for doing so.  However, section 4(9) of the Act clarifies that failure to register a customary marriage does not  render it invalid.

Following her husband’s death, the applicant approached the Master of the High Court to register  the deceased’s estate and be appointed executor. The Master declined, citing the absence of  marriage registration and arguing that the RCMA does not allow for posthumous registration. The  matter was referred to the Department of Home Affairs, which also refused to register the marriage.  Notably, neither the Master nor Home Affairs contested any of the applicant’s factual claims in her  application.¹⁰

These cases affirm the legal validity of customary marriages under South African law, yet they  also expose the real-world challenges that arise when such unions lack formal registration— particularly in matters of succession, where surviving spouses often struggle to assert their rights  without official documentation.

Critical Analysis

While the Recognition of Customary Marriages Act (RCMA) was enacted with the intention of  bridging the gap between customary and civil marriage systems, its implementation has revealed  significant flaws. One of the most pressing issues stems from the Act’s allowance for unregistered  marriages, which has led to a range of legal and practical complications. Firstly, it has created  substantial evidentiary challenges when individuals attempt to assert spousal rights, particularly in  succession and maintenance claims. Secondly, the absence of formal documentation has opened  the door for fraudulent denial of marriage by family members or heirs, thereby undermining the  rights of surviving spouses. Thirdly, this legal ambiguity has disproportionately affected women  and rural communities, who often face limited access to legal resources and institutional support.

In addition to these substantive issues, the registration system itself remains severely under utilized. This under-utilization can be attributed to several factors, including a general lack of  public awareness about the importance and process of registration, persistent administrative  inefficiencies within the Department of Home Affairs, and a cultural reluctance among some  communities to engage with formal state institutions. These barriers collectively hinder the  effectiveness of the RCMA and perpetuate legal uncertainty for those in customary unions.

By contrast, civil marriages are automatically registered upon solemnization, which ensures their  unambiguous legal recognition and protection. This stark disparity between the treatment of civil  and customary marriages results in unequal protection under the law, thereby undermining the  constitutional principles of equality and human dignity that the RCMA was meant to uphold.

A comparative analysis of countries such as Ghana and Nigeria reveals that while they face similar  challenges in integrating customary marriage practices into formal legal systems, they have made  more concerted efforts to address these issues. Both countries have launched more robust public  education campaigns and have taken steps to better integrate customary practices into their formal  legal frameworks. These initiatives offer valuable lessons for South Africa as it seeks to strengthen  the legal recognition and protection of customary marriages.¹¹

Recent Developments

In 2019, the South African Law Reform Commission published a comprehensive report  recommending reforms aimed at modernizing the legal framework governing customary  marriages. Among its key proposals was the introduction of mandatory and more accessible  registration procedures, intended to strengthen legal certainty and protect spousal rights.

Following this, the Department of Home Affairs initiated several outreach programs designed to  raise public awareness about the importance of registering customary marriages. These efforts  have been particularly targeted at rural communities, where access to legal information and  services remains limited. Despite these initiatives, no legislative amendments have yet been  enacted to make registration a prerequisite for asserting spousal rights—especially in cases of  intestate succession, where the absence of formal documentation continues to disadvantage  surviving spouses.

Meanwhile, there has been a noticeable increase in media coverage of cases involving women who  have been denied inheritance due to the non-registration of their customary marriages. These  stories have sparked widespread public debate and intensified calls for reform, highlighting the  urgent need to reconcile customary practices with constitutional protections and ensure equitable  treatment under the law.¹²

Suggestions / Way Forward

Registration of customary marriages should become a legal requirement, to be completed within a  clearly defined timeframe. If parties fail to register the marriage without a valid reason, their ability  to assert legal claims—such as inheritance or maintenance—should be limited. This would  encourage compliance while still allowing for exceptions in justified cases.

The registration process should be made more accessible and user-friendly. This could be achieved  by introducing mobile registration units that travel to remote areas, as well as digital platforms that  allow for online registration. These innovations would help overcome logistical barriers,  particularly in rural communities.

Courts should be granted the authority to presume the existence of a customary marriage based on  credible evidence. Such evidence may include witness testimony, proof of traditional ceremonies,  or patterns of cohabitation and shared responsibilities. This mechanism would protect spouses who  face difficulties in formalizing their unions due to administrative or cultural constraints.

A coordinated effort involving government departments, civil society organizations, and traditional  leaders should be launched to educate communities about the importance of registering customary  marriages. These campaigns should highlight how registration affects inheritance rights, access to  legal remedies, and overall recognition of marital status.

The Intestate Succession Act should be amended to explicitly include spouses in unregistered  customary marriages, provided there is sufficient evidence that the union was valid under  customary law. This reform would close the gap between marriage recognition and inheritance  rights, ensuring that surviving spouses are not unfairly excluded from succession claims.

Conclusion

The continued non-registration of customary marriages in South Africa has far-reaching legal  consequences, particularly in matters of inheritance and spousal recognition. While the  Recognition of Customary Marriages Act affirms the validity of these unions, the absence of  formal documentation often results in the denial of fundamental rights and persistent legal  uncertainty.

To truly uphold the constitutional principles of equality and dignity, the legal system must evolve  to treat customary and civil marriages with equal respect—not merely in legislative intent, but in  practical application. Reforms that mandate registration, streamline the process, and raise public  awareness are essential to closing this gap. Such measures will not only prevent injustice but also  safeguard cultural traditions within a framework of legal certainty and human rights.

Bibliography

1. Recognition of Customary Marriages Act 120 of 1998
2. Intestate Succession Act 81 of 1987
3. MM v MN and Another 2013 (4) SA 415 (CC)
4. Khashane v Minister of Home Affairs and Others 2024 (5) SA 242 (GP) 5. South African Law Reform Commission, Project 138: The Practice of Ukuthwala (2019) 6. Department of Home Affairs Official Website
5. Mothokoa, L. (2020). “Customary Marriages and Legal Recognition in South Africa.” South African Journal of Law and Society
6. News24 (2022). “Widow Denied Inheritance After Customary Marriage Dispute.” 9. African Customary Law in South – I. P. Maithufi-1

¹Recognition of Customary Marriages Act 120 of 1998

²African Customary Law in South – I. P. Maithufi-1

³ Section 2 Recognition of Customary Marriages Act 120 of 1998

⁴ Marriage Act 25 of 1961

⁵ Recognition of Customary Marriages Act 120 of 1998

⁶ Section 2 of the RCMA

⁷ Department of Home Affairs Official Website

⁸Intestate Succession Act 81 of 1987

⁹ MM v MN and Another 2013 (4) SA 415 (CC)

¹⁰ Khashane v Minister of Home Affairs and Others 2024 (5) SA 242 (GP)

¹¹ Mothokoa, L. (2020). “Customary Marriages and Legal Recognition in South Africa.” South African Journal of  Law and Society

¹² South African Law Reform Commission, Project 138: The Practice of Ukuthwala (2019)