Customary Marriages and the Right to Equality in South Africa

Abstract

This article explores the intersection between customary marriages—a deeply rooted cultural  practice in South Africa—and the constitutional right to equality, particularly for women.  Drawing on legal developments, constitutional jurisprudence, and personal reflections, it  critically assesses the Recognition of Customary Marriages Act 120 of 1998 (RCMA) and its  effectiveness in promoting gender equality, especially in rural and traditional communities. The  discussion unpacks pivotal Constitutional Court judgments that have helped reshape customary  law to align with democratic values. While the legal framework has made significant strides, the  article argues that legal reform alone is insufficient. Effective implementation, public education,  and a transformation in cultural attitudes are essential to ensure that women experience  substantive equality within customary marriage systems.

Introduction

Growing up in South Africa, I’ve always witnessed how customs shape our everyday lives,  especially in matters of marriage, family, and inheritance. For many communities, particularly in  rural areas, customary law is not just a legal system—it’s a living expression of tradition and  identity. Marriage, under customary law, carries deep social meaning, connecting families,  solidifying kinship bonds, and preserving cultural practices passed down through generations.

However, these practices do not always harmonize with the constitutional principles of equality  and human dignity. Historically, many customary practices, including the treatment of women in  marriage, have been shaped by patriarchal norms. In many cases, women in customary unions  lacked legal recognition, had limited property rights, and faced structural inequality both within  their families and in broader society.

The South African Constitution, adopted in 1996, ushered in a new era that promises equality, dignity, and cultural identity for all. But achieving that vision in practice—especially in  the context of customary marriages—has been a complex balancing act. On one hand, the Constitution protects cultural diversity; on the other, it mandates gender equality and human  rights.

In response to this challenge, Parliament enacted the Recognition of Customary Marriages Act  120 of 1998. The Act was a groundbreaking effort to give full legal recognition to customary  marriages and ensure that both spouses—especially women—enjoy equal legal status. But more  than two decades later, the reality on the ground still reflects a gap between the law and lived  experiences. As a young woman studying law, I find myself grappling with these tensions. I see  both progress and setbacks, and I believe that understanding this landscape is essential for  anyone committed to justice and transformation.

Legal Recognition of Customary Marriages

Before 1998, customary marriages in South Africa were not recognized as equal to civil or  religious marriages. Women in these unions often faced discrimination and were denied rights  enjoyed by spouses in civil marriages—such as property ownership, inheritance, or legal  protection during divorce. This unequal treatment entrenched gender hierarchies and left many  women vulnerable.

The RCMA sought to change this reality by formally recognizing customary marriages and  placing them on an equal footing with civil marriages. One of its most progressive features is  section 6¹, which affirms that spouses in customary marriages have equal legal status and  capacity.

However, the Act’s promise of equality has not been fully realized. Many customary marriages  remain unregistered, especially in rural areas. A 2015 study in the Eastern Cape, Transkei and  Khayelitsha revealed that patriarchal structures and lack of legal awareness severely limit  compliance with the RCMA.²

Moreover, the registration process—although intended to be accessible—is often underutilized due to limited awareness, logistical challenges, and cultural reluctance. A 2024 study found that  compliance with the RCMA’s registration requirements remains low, often delayed beyond the  one-month legal period due to bureaucratic and practical obstacles.³

Another significant concern is the lack of alignment between the RCMA and traditional systems  of authority. In many rural communities, traditional leaders continue to play a dominant role in  regulating marriage, divorce, and inheritance. If these leaders are not familiar with or do not  support the RCMA’s provisions, women are unlikely to benefit from the legal rights it confers.

Equality in Customary Law: The Constitutional Context

The South African Constitution is widely celebrated for its robust protection of human rights and  cultural identity. Section 9 guarantees the right to equality, while section 15 ensures freedom of  religion, belief, and opinion—including cultural and customary beliefs. Importantly, section  211(3) recognizes the authority of customary law, provided it aligns with the Constitution.⁴

This constitutional framework acknowledges that culture and tradition are important, but they  cannot be used to justify discrimination. Customary law must evolve in a way that respects  fundamental rights, particularly the dignity and equality of women and children.

The Constitutional Court has played a vital role in interpreting these principles. In Bhe v  Magistrate, Khayelitsha, the Court struck down the rule of male primogeniture, which favored sons over daughters in matters of inheritance.⁵

Similarly, in Gumede v President of the Republic of South Africa, the Court ruled that women in  monogamous customary marriages should have equal rights to marital property.⁶

Another landmark decision, MM v MN, dealt with polygynous marriages. The Court held that  existing wives must give informed consent before a husband can take another wife.⁷

This legal shift has been described as a “place of pride within the country’s legal framework” and  a landmark moment for African customary law. ⁸

The Gap Between Law and Practice

Despite these legal victories, the reality for many South African women—especially in rural or  traditional communities—remains fraught with inequality. Patriarchy continues to shape how  customary marriages function in practice. Even when the law recognizes women’s rights, cultural  expectations and social norms often undermine them.

A key issue is the failure to register customary marriages. Without registration, it becomes  extremely difficult for women to claim maintenance, inherit property, or receive a fair divorce  settlement. In some instances, families dispute the existence of marriage altogether, particularly  when a widow tries to claim land or inheritance.

Legal literacy is another barrier. Many women are simply unaware of their rights under the  RCMA and the Constitution. They may not know that courts have ruled in their Favour, or that  they can challenge decisions made by traditional authorities. This lack of awareness creates a  situation where women are “legally protected” but practically powerless.

Further compounding these challenges is the uneven implementation of the law. Traditional  leaders are not always trained in the RCMA or may be reluctant to apply its provisions. Some  still follow customary norms that prioritize male authority, even when these norms conflict with  constitutional values.

These practical obstacles mean that gender inequality persists—not because the law is weak, but  because the systems that uphold it are inconsistent, inaccessible, or hostile to change.

Personal Reflections: Why This Matters

As a law student and young South African woman, I find this topic deeply personal. I’ve seen  women in my own community struggle with land ownership, inheritance, and recognition— simply because their marriages weren’t formally registered, or because tradition outweighed  legal rights.

What strikes me most is how invisible these struggles can be. Women suffer in silence, often  believing that they have no choice or no voice. The law promises them equality, but tradition  demands obedience. And caught in between are real human beings—mothers, daughters,  wives—whose lives hang in the balance.

This is why legal reform cannot exist in a vacuum. Social transformation must accompany legal  change. If we want to achieve genuine equality, we must invest in legal education, access to  justice, and cultural dialogue. We need community workshops, mobile legal clinics, and  partnerships with traditional leaders who are willing to champion equality.

More importantly, we need to foster a national conversation that doesn’t pit culture against rights  but finds ways to integrate the two. Customary law is not inherently oppressive—but when it is  frozen in time or misapplied, it becomes a tool of exclusion rather than identity.

Conclusion and Recommendations

Customary marriages are an important part of South Africa’s cultural and legal identity. They  reflect centuries of tradition and provide a foundation for social life in many communities.  However, they must also evolve to reflect the democratic values of equality, dignity, and  freedom.

The RCMA and the Constitution together provide a strong legal framework for protecting the  rights of women in customary marriages. In 2009, Parliament passed further legislation to reform  succession laws, and recent OECD reports encourage codifying customary law to improve its accessibility and enforceability.⁹

The Constitutional Court has reinforced these rights through progressive judgments that  challenge patriarchal norms and reaffirm human dignity.

But the law alone is not enough. To bridge the gap between promise and practice, several steps  must be taken:

– Improve registration of customary marriages through mobile units, public awareness  campaigns, and simplified procedures.

– Launch legal literacy programmed in rural communities, particularly aimed at women and  traditional leaders.

– Provide training for traditional authorities on the RCMA and constitutional rights, so they can  administer justice fairly.

– Expand access to legal aid and support services, especially for women seeking to enforce their  rights in marriage, divorce, or inheritance disputes.

– Encourage cultural dialogue that embraces the evolution of customary law in line with  constitutional values.

Only when these steps are taken can we say that the law is not just written but lived. And only  then can we honor both our traditions and our commitment to justice.

Footnotes (OSCOLA Style)

1. Recognition of Customary Marriages Act 120 of 1998, s 6.
2. Constitution of the Republic of South Africa, 1996, ss 9, 15, 211(3).
3. Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC).
4. Gumede v President of the Republic of South Africa 2009 (3) SA 152 (CC). 5. MM v MN and Another 2013 (4) SA 415 (CC).
5. L Mwambene and H Kruuse, ‘Unfulfilled Promises? The Implementation of the Recognition of Customary Marriages Act in South Africa’ (2015) 29 International Journal of Law, Policy and the Family.
6. ME Nkuna‑Mavutane and J Jamneck, ‘Improving Compliance with Section 4(1) of the Recognition of Customary Marriages Act 120 of 1998: Registration of Customary Marriages’ (2024) PER/PELJ <doi:10.17159/1727‑3781/2024/v27i0a15362>.
7. WA Amien, ‘Reflections on the Recognition of African Customary Marriages in South Africa: Seeking Insights for the Recognition of Muslim Marriages’ (2013) Acta Juridica.
8. OECD, ‘The Codification of Customary Laws in South Africa’ (May 2025), Gender Equality Report <https://www.oecd.org/en/publications/gender-equality_cfc9cac7-en/the-codification-of customary-laws-in-south-africa_3022b119-en.html>.
9. ⁷ MM v MN and Another 2013 (4) SA 415 (CC)