For generations, customary marriages have been central to family traditions and community structures in South Africa. But while these unions hold deep cultural and historical significance, they also carry real legal consequences—ones that many couples don’t fully understand until it’s too late.

What happens if your marriage isn’t registered? Can your spouse take another wife without your consent? Do you automatically share property, or do you need a contract to protect your assets?

Thanks to the Customary Marriages Act in South Africa, these unions are legally recognized—but that doesn’t mean they’re automatically valid or free from legal complications. If you’re planning a customary marriage, here’s what you need to know before you commit.

What Makes a Customary Marriage Legally Valid?

Many couples assume that because they’ve held a traditional ceremony, their marriage is automatically recognized by law—but that’s not always the case. The Customary Marriages Act in South Africa sets specific legal requirements for a marriage to be fully valid and enforceable.

A customary marriage is legally valid if:

• Both spouses are at least 18 years old.
• The marriage was negotiated, celebrated, and entered into according to customary law.
• Both partners consented to the marriage (forced marriages are illegal).
• The marriage was registered with Home Affairs (not immediately required, but strongly advised).

One of the biggest misunderstandings about customary marriage law in South Africa is the belief that lobolo payments automatically mean a legal marriage. While lobolo is an important cultural practice, it is not the sole requirement for legal recognition.

Failure to meet these legal requirements can lead to major issues, especially when it comes to property rights, divorce, or inheritance claims.

Customary Marriage vs. Civil Marriage – What’s the Difference?

One of the biggest areas of confusion in customary marriage law in South Africa is how these unions compare to Civil Marriages (Not to be confused with Civil Unions). Are they equal under the law? Can you have both? What happens if your spouse tries to marry someone else under a different system?

The reality is that customary and civil marriages are not the same, and failing to understand the legal differences can have serious consequences.

Customary Marriages – Governed by Customary Law

A customary marriage is based on traditional African customs and cultural practices. Under the Customary Marriages Act in South Africa, these marriages are legally recognized, but they:

• Automatically default to in community of property unless a contract states otherwise.
• Allow for polygyny, meaning a husband can take another wife—but only with court-approved financial agreements to protect all spouses.
• Must be negotiated, celebrated, and recognized according to cultural tradition to be valid.

Civil Marriages – Governed by South African Marriage Law

A civil marriage, on the other hand, is a legally binding union under South African statutory law. This means:

• The marriage must be registered with Home Affairs.
• Polygamous marriages are not permitted—once married under civil law, neither spouse can legally take another husband or wife.
• The couple can choose marital property regimes (in community of property or out of community with or without accrual).

Can You Have Both?

It is possible to have both a customary and civil marriage, but only if you marry the same person in both systems. This means that if you first marry under customary law, you can later register a civil marriage with the same spouse—but you cannot enter a civil marriage with one partner and a customary marriage with another.

If a spouse in a customary marriage enters a civil marriage with someone else, the second marriage is not legally valid. This can lead to inheritance disputes, property conflicts, and legal battles over marital rights.

Lobolo and Its Role in Customary Marriages

Lobolo or lobola in Zulu, Xhosa, Swazi, Silozi, and northern and southern Ndebele (mahadi in Sesotho, mahari in Swahili, magadi in Sepedi, bogadi Setswana, lovola in Xitsonga, mamalo in Tshivenda, and roora in ChiShona), sometimes referred to as "bride wealth" or "bride price" is a property in livestock or kind, which a prospective husband, or head of his family, undertakes to give to the head of a prospective wife's family in gratitude of letting the husband marry their daughter and for the brides family for raising her.

Lobolo is one of the most widely recognized traditions in customary marriages in South Africa, but there is a common misconception that paying lobolo automatically makes a marriage legally valid. While lobolo is an important cultural practice, it is just one part of what makes a customary marriage legally binding.

Does Paying Lobolo Mean You Are Married?

Lobolo negotiations are an essential step in many African customary marriages, but on their own, they do not constitute a legally recognized marriage. Under the Customary Marriages Act in South Africa, a marriage is only valid if:

• Both spouses consent to the union.
• The marriage is entered into according to customary law.
• The spouses are both over 18 years old.

Even if lobolo has been fully paid, a marriage that does not meet these legal requirements may not be recognized by South African law.

What Happens If Lobolo is Agreed Upon but Not Fully Paid?

In some cases, lobolo is negotiated and partially paid, but the final payment is delayed or remains outstanding for years. This raises legal questions about whether the marriage is valid if the lobolo process was never fully completed.
South African courts have ruled that a customary marriage can still be valid even if lobolo has not been fully paid, provided that:

• The marriage was celebrated according to tradition.
• Both spouses and their families recognized it as a marriage.

However, complications may arise if one party disputes the validity of the marriage, particularly in cases of divorce, inheritance disputes, or property division.

Lobolo and the Registration of a Customary Marriage

While a customary marriage does not have to be registered immediately to be legally valid, failing to register it can create serious legal complications, especially in cases of death or divorce. Many spouses—particularly women—face difficulties proving the existence of their marriage when it is not officially recorded, which can impact inheritance claims, property rights, and financial security.

For this reason, even when lobolo negotiations have taken place, couples are encouraged to register their marriage with Home Affairs to ensure their union is legally protected.

Why Registering a Customary Marriage Matters

A customary marriage does not need to be registered immediately to be legally valid, but failing to register it can cause serious complications later on. Many spouses assume that because their marriage was celebrated according to tradition, they are automatically protected under the law. However, in cases of death, divorce, or property disputes, proving the existence of an unregistered marriage can become a major legal challenge.

The Consequences of Not Registering a Customary Marriage

Many spouses—particularly women—face legal difficulties when their marriage is not officially recorded. Without a marriage certificate, they may struggle to:

• Claim inheritance if their spouse passes away.
• Enforce property rights in cases of separation or divorce.
• Prove their marital status when applying for financial benefits or loans.

Unregistered marriages also create complications for children, particularly when it comes to birth registration and inheritance rights. A registered marriage ensures that children born within the union are fully protected under the law.

How to Register a Customary Marriage

To avoid these issues, couples should ensure that their marriage is registered with Home Affairs as soon as possible. The registration process requires:

• A completed application form from the Department of Home Affairs.
• Copies of both spouses' identity documents.
• Proof that the marriage was negotiated and celebrated under customary law, which may include a lobolo agreement or affidavits from family members.

Can One Spouse Register a Customary Marriage Alone?

In most cases, both spouses must be present to register the marriage, but there are situations where one spouse may apply alone—for example, if the other spouse refuses to cooperate. While Home Affairs may refuse to register a marriage without both parties present, legal action can be taken to force registration if necessary.

The longer a marriage remains unregistered, the more difficult it can be to establish legal proof of the union. Couples who wish to avoid legal uncertainty should prioritize registration to ensure their rights—and those of their children—are fully protected.

Why Legal Consultation Before Marriage Matters

Customary marriages are deeply rooted in tradition and culture, but they also come with legal obligations that many couples only realize when facing property disputes, inheritance claims, or divorce proceedings. The Customary Marriages Act in South Africa provides legal protections, but failing to understand your rights from the start can lead to unnecessary financial and legal hardships.

Avoiding Unintended Legal Consequences

Many couples enter into a customary marriage without fully understanding how it impacts their financial and property rights. Common issues that arise include:

• Automatically being married in community of property unless an antenuptial contract is signed before marriage.
• Confusion over polygynous marriages and the need for a court-approved contract before taking another wife.
• Disputes over property ownership, particularly when one spouse purchases assets in their own name without formal agreements.

These legal challenges can often be avoided entirely with the right legal advice before marriage.

When to Consult a Marriage Contract Lawyer

Speaking with a marriage contract lawyer before entering into a customary marriage ensures that both spouses:

• Understand their rights and obligations.
• Have clarity on property ownership and financial responsibilities.
• Are aware of the importance of marriage registration and how to protect their legal status.

For couples who want to maintain financial independence, an antenuptial contract must be signed before the marriage—once the marriage takes place, changing the marital property system requires a court application, which is a lengthy and expensive process.

Aucamp Attorneys – Marriage Contract Lawyers

Many couples enter into a customary marriage believing that tradition alone will protect their rights, only to face unexpected legal and financial challenges down the line. A marriage that isn’t registered can leave a spouse struggling to prove their union exists, and without a clear property agreement, disputes over assets can become complicated. These aren’t just legal technicalities—they affect inheritance, divorce settlements, and financial security.

Understanding your rights before marriage can prevent costly disputes and legal uncertainty. At Aucamp Attorneys, we help couples put the right legal structures in place, whether through registering their marriage, drafting antenuptial contracts, or clarifying property rights. The choices you make today will determine how secure your future is, and ensuring your marriage contract reflects your needs is a step worth taking.

If you’re entering a customary marriage or need to confirm where you stand legally, speak to Aucamp Attorneys—because protecting your future starts with the right legal guidance.