Common Misconceptions

1. Lobolo is legally required for the marriage to be valid

This is one of the biggest myths. Lobola is not a necessary requirement for the validity of the customary marriage — however, if it is paid, it helps prove that the marriage was negotiated in accordance with custom. Many families believe that without lobola, there is no legal marriage, but the law does not take that position.

2. You don't need to register it. Nothing was signed

For years, people married by customary marriage would walk away from the marriage without formally ending it, believing that since nothing was signed or registered, there were no legal implications attached. This is not the case. The marriage is legally binding regardless of registration.

3. An unregistered customary marriage can just be abandoned

A customary marriage needs to be dissolved in the same way that a civil union would be: by means of a divorce. A customary marriage, even if it was not registered with Home Affairs, is legally binding, and parties need to approach the court for a divorce order if they wish to end the marriage.

4. The marriage is not automatically in community of property

A customary marriage is automatically considered to be in community of property. This means that all the assets and debts from before the marriage are shared in a joint estate between spouses. Each spouse loses the right to dispose of assets as they wish or acquire debt without the other's knowledge and consent. Many couples are unaware of this until a dispute arises.

5. A man can freely take a second customary wife without any legal steps

A husband in a customary marriage who wishes to enter into a further customary marriage with another woman must make an application to the Court to approve a written contract that will regulate the future matrimonial property system of his marriages. Furthermore, the husband must obtain the consent of the first wife before entering into a further customary marriage. Failure to do so will render the further marriages automatically out of community of property.

6. You can have both a civil marriage and a customary marriage with different people

A person is not allowed to have a customary marriage and a civil marriage at the same time with different parties. However, a couple who is married to each other in terms of customary law may enter into a civil marriage with each other as well.

7. Hindu or Muslim marriages fall under customary marriage law

By definition, a customary marriage is one "negotiated, celebrated or concluded according to any of the systems of indigenous African customary law which exist in South Africa." This does not include marriages concluded in accordance with Hindu, Muslim or other religious rites.

The Proper Way to Enter a Customary Marriage

The process is governed by the Recognition of Customary Marriages Act 120 of 1998, which came into effect on 15 November 2000.

Meet the legal requirements

Both parties must be above the age of 18 years, must consent to being married under customary law, and the marriage must be negotiated, celebrated, and entered into in accordance with customary law. The parties must not be prohibited from marriage because of a relationship by blood or affinity as determined by customary law.

Conduct negotiations (including lobolo where applicable)

Lobolo is known by various names across cultures: bogadi, bohali, xuma, lumalo, thaka, ikhazi, magadi, emabheka. While the same principle applies, it is not universally applicable in all customs. Family representatives from both sides should ideally document the negotiations in writing.

Consider your matrimonial property regime

Should the couple want to be married out of community of property, an ante-nuptial agreement must be signed before the ceremony; otherwise, they would have to approach the High Court to change it afterwards.

Register the marriage within 3 months

Customary marriages must be registered within three months of taking place at any office of the Department of Home Affairs or through a designated traditional leader in areas where there are no Home Affairs offices.

When registering, the two spouses (with copies of their valid identity books and a lobola agreement, if available), at least one witness from the bride's family, and at least one witness from the groom's family must present themselves. Customary marriages are registered by completing form BI-1699 and paying the required fees.

Keep your documentation

Many women find it difficult to claim death benefits from their husband's workplace after he has died because the company demands to see a marriage certificate. It is also important to have a marriage certificate so that children can receive their father's surname when they are registered at Home Affairs.