Authored By: Vuyokazi Jako
Cape Peninsula University of Technology
Arranged marriages, a practice with deep cultural and historical roots in South Africa, exist at the complex intersection of custom, family law, and constitutional rights. This article examines the legal validity and regulation of arranged marriages within the South African legal framework. It explores the critical distinction between arranged marriages that are consensual and those that constitute forced marriages, which are illegal. The analysis covers the application of the Recognition of Customary Marriages Act, the Marriage Act, and the evolving provisions of the Draft Marriage Bill. Furthermore, the article synthesizes relevant case law from South African courts to illustrate how legal principles are applied in practice, emphasizing the supremacy of the Constitution in protecting individual rights to dignity, equality, and freedom from coercion.
- Introduction: Defining Arranged Marriages in a Constitutional Democracy
In the diverse social fabric of South Africa, marriage practices vary significantly, encompassing civil, customary, religious, and arranged unions. An arranged marriage, typically facilitated by family members, should not be conflated with a forced marriage. The former, when involving consenting adults, is a legitimate social practice, while the latter, involving coercion and a lack of consent, is a violation of fundamental human rights and South African law . The South African government has explicitly stated that while it has “no intentions of stripping away cultural practises,” it is committed to eradicating harmful practices, including forced and underage marriages . This article delves into the legal nuances that separate culturally sanctioned arrangements from unconstitutional coercion, examining the statutory frameworks and judicial reasoning that guide this distinction.
However, the shadow of coercion looms large. The critical legal and ethical line is drawn at the point of consent. A consensual arranged marriage is a protected cultural expression; a forced marriage is a fundamental violation of human rights. This article will explore how South African law navigates this delicate terrain, upholding the right to culture (Section 30 and 31 of the Constitution) while simultaneously enforcing the inviolable rights to dignity (Section 10), freedom and security of the person (Section 12), and equality (Section 9).
- The Legal Framework Governing Marriages in South Africa
South Africa’s marriage law is pluralistic, currently governed by several pieces of legislation, which the Draft Marriage Bill of 2022 seeks to consolidate into a single framework. The validity of any marriage, including an arranged one, depends on its compliance with one of these recognized systems.
2.1. The Recognition of Customary Marriages Act 120 of 1998
This Act gives legal force to marriages negotiated and celebrated according to the customs of indigenous African communities. For a customary marriage to be valid, both parties must be 18 years or older, must both consent to the marriage, and the marriage must be negotiated and entered into in accordance with customary law. The Act also provides for polygynous marriages, subject to a court-approved contract that regulates the proprietary consequences.
2.2. The Marriage Act 25 of 1961
This Act governs civil marriages. The fundamental requirements are that both parties must consent freely and be over the age of 18, or have permission from the Minister of Home Affairs if below that age. An arranged marriage that culminates in a civil ceremony is perfectly legal, provided the final consent to marry is given freely by both individuals before the marriage officer.
2.3. The Draft Marriage Bill of 2022
This proposed legislation aims to create a uniform marriage law that is inclusive of all genders, sexual orientations, and religious or cultural beliefs. Key provisions relevant to arranged marriages include Criminalisation of Child Marriages: The Bill seeks to unequivocally prohibit marriages for persons under the age of 18, closing previous loopholes, Consolidation and Clarity: By bringing all marriage types under one law, the Bill aims to reduce legal uncertainty and strengthen the principle that all marriages require free and full consent.
- The Crucial Distinction: Arranged vs. Forced Marriages
The central tenet in South African law is consent. The Commission for Gender Equality (CGE) and the Department of Co-operative Governance and Traditional Affairs (COGTA) have drawn a clear line, affirming that practices like ukuthwala (a traditional practice of abduction to initiate marriage negotiations) are illegal when they involve the abduction of and sexual intercourse with minors or women without their consent .
Consensual Arranged Marriage: This is a process where families introduce and facilitate a marriage, but the ultimate decision to marry rests with the individuals, who must give their free and informed consent. This practice is legal and protected under the right to culture .
Forced Marriage: This occurs when one or both parties do not consent to the marriage or are unable to (due to age or duress). This practice is illegal and constitutes a violation of several constitutional rights, including dignity (Section 10), freedom and security of the person (Section 12), and in the case of children, the paramountcy of the child’s best interests (Section 28) . The Children’s Act explicitly prohibits giving out a child in marriage or engagement .
- Analysis of Relevant South African Case Law
South African courts have consistently upheld the principle of consent and gender equality, even within culturally contextual marriages. The following cases demonstrate this judicial trend.
4.1. Mayelane v Ngwenyama and Another (2013)
This landmark Constitutional Court case addressed the requirement for a husband to obtain the consent of his first wife before entering into a subsequent customary marriage with another woman. The Court held that the consent of the first wife is a necessary requirement for the validity of a second customary marriage, grounding its reasoning in the constitutional rights to dignity and equality of the existing spouse. This judgment was a profound affirmation that customary law is subject to the Constitution and must be developed in line with its values.
4.2. NRM v FN and Others (2025)
In this recent Mbombela High Court case, a man had entered into a second customary marriage without the knowledge or consent of his first wife. Upon his death, both women claimed rights to his estate. The court, applying the precedent set in Mayelane, declared the second marriage null and void . The ruling reinforced that “the first wife’s rights to equality, dignity, and autonomy are not compatible with a second marriage conducted in secret or without her knowledge”. This case highlights the judiciary’s role in protecting spouses from unilateral decisions that undermine their marital status and economic security.
4.3. Ex parte application of B[…] M[…] M[…] and Others (2025)
This KwaZulu-Natal High Court case involved a complex situation where a couple, initially in a civil marriage, sought a divorce to subsequently enter a polygamous customary marriage with a second wife. The court meticulously examined the proprietary consequences and the genuine intentions behind the divorce and subsequent marriage contract. The case underscores the rigorous procedural safeguards, including court oversight, that are required for legally valid polygamous marriages under the Recognition of Customary Marriages Act. It demonstrates that even marriages arranged or restructured for cultural reasons must undergo strict judicial scrutiny to ensure fairness and legality.
4.4. Women’s Legal Centre Trust v President of the Republic of South Africa (2022)
While concerning Muslim marriages, this Constitutional Court judgment is highly influential. The court declared the non-recognition of Muslim marriages unconstitutional, emphasizing the need for legal protections for women in all marital relationships. This ruling reinforces the overarching principle that all marriage systems, including arranged and religious ones, must operate within a framework that guarantees equality and dignity for all parties, as mandated by the Constitution.
- The Persistent Challenges: Law vs. Lived Reality
Despite a progressive legal framework, significant challenges remain: Social and Familial Pressure: The line between “arrangement” and “coercion” can be blurred by immense social and familial pressure, which is difficult to legislate against and even harder for a potential victim to resist. Underage Ukuthwala: The traditional practice of ukuthwala has been hijacked in some communities to justify the abduction and forced marriage of underage girls, a practice condemned by both the Commission for Gender Equality and traditional leaders. Lack of Legal Knowledge: In remote and rural areas, many individuals are unaware of their legal rights or the legal requirements for a valid marriage, leaving them vulnerable to exploitation within informal “arranged” unions. Economic Vulnerability: Fear of economic destitution or social ostracization often prevents individuals, particularly women, from refusing or contesting a forced arrangement.
Conclusion and the Path Forward
The legal status of arranged marriages in South Africa is unequivocally clear: they are legitimate cultural practices when founded on the free and full consent of both adults involved. However, the law draws a firm and unyielding line at forced marriages, which are illegal and unconstitutional. The evolving jurisprudence, as seen in cases like Mayelane and NRM v FN, demonstrates a sophisticated and rights-based approach by South African courts. Judges are increasingly adept at balancing the respect for cultural diversity with the unwavering enforcement of constitutional rights.
The impending Draft Marriage Bill promises to further strengthen this framework by creating a single, coherent law that explicitly criminalizes child marriage and mandates consent for all unions. For legal practitioners, community leaders, and families, the ongoing challenge is to foster a clear understanding of this distinction. Continuous education and dialogue, as initiated by the Commission for Gender Equality and COGTA, are essential. As South Africa continues to harmonize its rich cultural heritage with its transformative Constitution, the law remains a powerful tool for ensuring that the venerable tradition of arranged marriage is not a veil for the intolerable practice of forced union. However, the law alone is an insufficient remedy. A multi-pronged strategy is essential:
Community Legal Education: NGOs and government departments must intensify efforts to educate communities about the legal requirements for marriage and the resources available to victims of coercion. Support for Victims: Robust support systems, including accessible legal aid, shelters, and psychosocial services, are crucial for empowering individuals to escape forced unions. Engagement with Traditional Leaders: Collaborating with traditional and religious leaders is vital to reform harmful practices from within and to promote interpretations of culture that are consistent with constitutional values. The goal is not to eradicate cultural practices but to ensure that within the rich tapestry of South African life, the thread of individual consent remains unbreakable. The law must continue to be both a shield against coercion and a guardian of genuine cultural expression.
Reference(S):
Commission for Gender Equality and COGTA KZN, Media Statement on the practice of forced, arranged and underage marriages (2022).
1.Ex parte application of B[…] M[…] M[…] and Others (Case No.: D3120/2025) ZAKZDHC 63 (2025).
2.Mayelane v Ngwenyama and Another (Women’s’ Legal Centre Trust and others as Amici Curiae) 2013 (8) BCLR 918 (CC).
3.NRM v FN and Others (MM) (Case No. 943/2023) [2025] ZAMBMHC.
4.Women’s Legal Centre Trust v President of the Republic of South Africa and Others 2022 (5) SA 323 (CC).
5.The Centre for the Study of Violence and Reconciliation (CSVR), “The New Marriage Bill and its Implications in South Africa” (2023).
6.The Recognition of Customary Marriages Act 120 of 1998.
7.The Marriage Act 25 of 1961.
8.Legal Wise, “Quick Law Guide: Marriage Law South Africa” (2021).
9.De Rebus, “Consent, polygyny, and the Constitution: A new legal era for Muslim marriages in South Africa” (2025).
10.The Constitution of the Republic of South Africa, 1996
