Customary Marriages and Family Mediation in South Africa: What Families Need to Know

The Department of Home Affairs’ special window for registering customary marriages ran from 1 September 2024 to 31 August 2026. In the weeks around the deadline, the questions reaching us have been remarkably consistent. Is our marriage still valid if we missed the deadline? What happens now? Can the families not simply sort this out themselves?

These are good questions, and they sit exactly where law and family life meet, which is where family mediation does much of its work. Mediation can help families resolve a great deal of what flows from a customary marriage: care of the children, maintenance, the division of property, and the relationships between spouses, in-laws and extended family. But some of the questions underneath are legal questions that must be answered first, and a few can only be answered by a court.

This article is adapted from a briefing presented to accredited family and civil mediators. It sets out the legal position in plain language, and explains where family mediation fits, where it helps most, and where it must pause.

Customary law is part of our law, not a lesser system

It is worth being direct about this from the outset. Customary law is not a secondary or merely tolerated system in South Africa. The Constitutional Court has described it as an integral part of our law and an independent source of legal norms (Alexkor Ltd v Richtersveld Community, 2003). Section 211(3) of the Constitution requires courts to apply customary law when it is applicable, subject to the Constitution and to legislation dealing specifically with customary law, and sections 30 and 31 protect the right to participate in the cultural life of one’s choice.

That protection comes with a qualification. Customary law is subject to the Constitution, and must be interpreted and developed in a way that promotes the values of the Bill of Rights (Bhe v Magistrate, Khayelitsha, 2004). Where a customary rule falls short of the guarantees of equality and dignity, it is the rule that must give way.

Two further ideas matter a great deal at the mediation table.

Customary law is living law. It is not a fixed code recorded a century ago. It evolves with the actual, present practice of the community that observes it, and traditional communities retain the right to develop their own customs (Shilubana v Nwamitwa, 2008). The custom of one community is not necessarily the custom of another, and what applied a generation ago may not apply today.

Ubuntu is a constitutional value. Our courts have recognised ubuntu from S v Makwanyane (1995) through to Beadica 231 CC v Trustees, Oregon Trust (2020). It favours reconciliation over confrontation, and the restoration of relationships over the vindication of a winner, which is also the spirit of family mediation.

What makes a customary marriage valid

Customary marriages are governed by the Recognition of Customary Marriages Act 120 of 1998, which came into force on 15 November 2000 and was significantly amended by the Recognition of Customary Marriages Amendment Act 1 of 2021. A valid customary marriage is recognised as a marriage for all purposes. It is not a lesser category of marriage.

For a customary marriage concluded after the Act came into force, section 3(1) sets three requirements:

1. Age. Both prospective spouses must be 18 or older. Additional consent requirements apply where either party is a minor.
2. Consent. Both must consent to be married to each other under customary law. Consent obtained through pressure or coercion is not free consent.
3. Celebration. The marriage must be negotiated and entered into or celebrated in accordance with customary law.

The third requirement is the one most often misunderstood. Lobola negotiations are usually part of it, but lobola alone does not create a valid customary marriage. The question is whether the essential customs of the relevant community, as that community practises them today, were actually observed. Living customary law can also add requirements. In Mayelane v Ngwenyama (2013), the Constitutional Court held that in Xitsonga customary law the consent of the first wife is required for a husband’s later customary marriage to be valid.

Registration: proof of the marriage, not a condition of it

This is the point that matters most after 31 August. Registration is not a requirement for the validity of a customary marriage. Section 4(9) of the Act says so expressly: failure to register a customary marriage does not affect its validity.

Registration serves as prima facie proof that the marriage exists. That is why it is strongly recommended. It makes the marriage far easier to prove in a divorce, in the administration of a deceased estate, in a maintenance claim, and in any other dispute where the existence of the marriage matters.

A couple who missed the special registration window has therefore not lost their marriage. If the section 3 requirements were met when the marriage was concluded, the marriage is valid. What they have lost is the convenience of a simple paper trail, which is a real practical problem, but not a crisis about whether they are married. The reverse also holds: a registration certificate is strong evidence, but it does not make valid a marriage that never met the legal requirements.

Polygynous marriages

Customary marriages may be monogamous or polygynous. Where a husband in an existing customary marriage wishes to enter into a further customary marriage, section 7(6) of the Act requires him to apply to court for approval of a written contract regulating the future matrimonial property system of all his marriages. The purpose is to protect every wife, and to ensure fairness between them.

The Supreme Court of Appeal has held that failing to obtain that approval does not, on its own, invalidate the later marriage (Ngwenyama v Mayelane, 2012). It does, however, leave the property position of each marriage exposed and uncertain. That uncertainty is often precisely what brings a polygynous family to mediation.

Property: what each spouse is entitled to

Since Gumede v President of the Republic of South Africa (2008), a monogamous customary marriage is in community of property and of profit and loss by default, the same default that applies to civil marriages. That regime can be excluded only by an antenuptial contract concluded before the marriage, or changed later only with a court’s approval under section 21 of the Matrimonial Property Act 88 of 1984. It applies whether or not the marriage was registered.

In Ramuhovhi v President of the Republic of South Africa (2017), the Constitutional Court extended that protection to wives in polygynous marriages concluded before the Act came into force, holding that spouses in these marriages are entitled to equal rights of ownership and control of marital property. The 2021 Amendment Act, in force from 1 June 2021, amended the Act to give effect to that judgment.

In a polygynous family there is no single joint estate shared by everyone. Each marriage has its own property consequences, and has to be understood on its own terms.

A further development came in January 2026. In VVC v JRM (2026), a divided Constitutional Court held that when customary spouses later conclude a civil marriage with each other, the civil marriage does not end or replace the customary marriage. It is one continuous relationship. An antenuptial contract signed after the customary marriage cannot change the property system that has applied since the customary marriage began. Only a court can authorise that change, under section 21 of the Matrimonial Property Act.

How a customary marriage ends, and the role of mediation

A person may not be married in a civil marriage to one person and, at the same time, in a customary marriage to someone else. Spouses may conclude a civil marriage with each other, but as VVC v JRM confirms, that continues their existing relationship rather than creating a new one.

A customary marriage can be dissolved only by a court, through a decree of divorce, on the ground that the marriage has irretrievably broken down (section 8(1)). The Divorce Act 70 of 1979 applies, with the necessary changes, and so does the Mediation in Certain Divorce Matters Act 24 of 1987, which provides for the Family Advocate’s role in protecting the interests of minor children. Registration is not needed in order to divorce.

This is the point to raise, gently but clearly, with families who believe the marriage is already over. A family meeting that agrees the marriage has ended, or the return of lobola, does not dissolve a customary marriage. Until a court grants a decree of divorce, the marriage continues in law, with everything that follows from it: the property regime, maintenance obligations, and the complications that arise if either spouse wishes to remarry.

The Act does not sideline families’ own processes. Section 8(5) expressly preserves the role that customary law recognises for any person, including a traditional leader, in mediating disputes before a court dissolves the marriage. Family and traditional mediation remain valuable, and a professional family mediation can work alongside them.

Customary law, succession and family land

Disputes about a deceased estate often reach mediation carrying real grief, and sometimes an outdated assumption. Historically, intestate succession under customary law followed male primogeniture: the eldest son, or the nearest senior male relative, inherited to the exclusion of daughters, younger sons and children born outside marriage.

In Bhe v Magistrate, Khayelitsha (2004), the Constitutional Court held that rule unconstitutional, as an unjustifiable violation of the rights to equality and dignity. Following Bhe and the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009, estates of people who die without a will are now administered under the Intestate Succession Act 81 of 1987. Spouses and children share according to the statutory formula, regardless of gender or birth order.

If a family mediation begins on the old assumption that one elder relative is entitled to everything, the family needs legal advice on the actual entitlements before a mediated agreement about the estate can safely be reached. Our article on succession planning and mediation looks at estate disputes more broadly.

Communal and customary land rights are a further area of their own. Alexkor confirmed that indigenous law is an independent source of rights to land, assessed on its own terms. Where a dispute turns on communal land, it should involve a practitioner with real experience in that field.

What to expect in a family mediation involving a customary marriage

When a matter involving a customary marriage comes to us, these are the working principles we apply. If mediation is new to you, our guide to how mediation works in South Africa explains the process from start to finish.

• Every marriage is identified early. We ask, directly and without judgement, whether either spouse is or has been party to any other marriage, customary or civil. That picture is needed before property or maintenance can safely be mediated.
• Registration is not treated as the answer. An unregistered marriage is not automatically invalid, and a registered one is not automatically valid.
• In polygynous families, each marriage is mapped separately, with its own property position and the question of whether section 7(6) approval was obtained.
• Custom is established, not assumed. Where the content of a custom is genuinely disputed, one party’s assertion does not pass unchallenged as “the custom”. It may need input from elders of the relevant community or an expert.
• Extended family can take part where the parties agree. In customary contexts, in-laws, elders and other wives are often part of the picture, and the process can be designed to include them.
• Children come first. Where there are minor children, arrangements for their care, contact and maintenance are guided by their best interests, as the Children’s Act 38 of 2005 requires.
• A family agreement is carried into legal effect, through a settlement agreement and a court order, rather than left as an informal understanding.
• Where a legal question sits underneath, we pause. Whether a marriage is valid, whether a property regime has been changed, whether a marriage has been dissolved: these are questions for legal advice before mediation goes further.

When to take legal advice before mediating

Take independent legal advice first where:

• the existence or validity of the customary marriage is disputed;
• there is any question about whether a spouse freely consented to the marriage;
• a husband entered into a further customary marriage without court approval of the section 7(6) contract;
• spouses concluded a civil marriage, or signed an antenuptial contract, after their customary marriage;
• an estate is being distributed on the assumption of male primogeniture;
• communal or customary land rights are in dispute; or
• there is domestic violence, abuse, or a need for urgent protection, in which case mediation is not the right first step.

Frequently asked questions

Cases referred to

Judgments mentioned in this article

Case	Citation
Alexkor Ltd v Richtersveld Community	2004 (5) SA 460 (CC)
Bhe v Magistrate, Khayelitsha	2005 (1) SA 580 (CC)
Shilubana v Nwamitwa	2009 (2) SA 66 (CC)
S v Makwanyane	1995 (3) SA 391 (CC)
Beadica 231 CC v Trustees, Oregon Trust	2020 (5) SA 247 (CC)
Ngwenyama v Mayelane	2012 (4) SA 527 (SCA)
Mayelane v Ngwenyama	2013 (4) SA 415 (CC)
Gumede v President of the Republic of South Africa	2009 (3) SA 152 (CC)
Ramuhovhi v President of the Republic of South Africa	2018 (2) SA 1 (CC)
VVC v JRM	[2026] ZACC 2; 2026 (3) SA 1 (CC)

This article is general information about customary marriages and family mediation in South Africa and is not legal advice. The law in this area continues to develop through legislation and court judgments, so you should obtain advice on your own matter and confirm the current position before acting.

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