Formal Marriage vs Customary Marriage
South Africa recognises both formal marriages (under the Marriage Act or Civil Union Act) and customary marriages (under the Recognition of Customary Marriages Act). Both are legally valid, but they differ significantly in requirements, property regimes, and dissolution rules.
Formal Marriage
A marriage solemnised in terms of the Marriage Act 25 of 1961 or the Civil Union Act 17 of 2006 before a marriage officer.
When it applies: When the parties want the default civil law framework — regulated by the Divorce Act, fixed matrimonial property rules.
Law: Marriage Act 25 of 1961; Civil Union Act 17 of 2006.
Example: A couple married in a church by a registered marriage officer under the Marriage Act.
Customary Marriage
A marriage concluded in accordance with customary law, valid when the parties comply with lobola (bride wealth) and family involvement requirements under African custom.
When it applies: When parties follow their cultural tradition. The RCMA requires registration within 3 months but validity is not dependent on registration.
Law: Recognition of Customary Marriages Act 120 of 1998 (RCMA).
Example: A couple whose lobola was negotiated and paid, followed by traditional ceremonies.
Key Differences at a Glance
| Aspect | Formal Marriage | Customary Marriage |
|---|
| Polygamy |
Not permitted — one spouse at a time |
Permitted for men (subject to court approval and fair property settlement for existing wife) |
| Default property regime |
Community of property (unless ANC) |
Community of property for first marriage; additional marriages require court-approved contract |
| Dissolution |
Divorce Act 70 of 1979 — court order required |
Divorce Act 70 of 1979 — same court process required for dissolution |
| Registration |
Automatically registered by marriage officer |
Must be registered at Home Affairs within 3 months (but failure to register does not invalidate the marriage) |
| Minimum age |
18 (without parental consent); 15–17 with parental and court consent |
Varies by custom; must comply with Children's Act (18+ without consent) |
| Lobola requirement |
Not required |
Required by most customs; negotiation and payment is a central validity requirement |
Frequently Asked Questions
Is a customary marriage as legally valid as a civil marriage in South Africa?
Yes. The Recognition of Customary Marriages Act gives customary marriages full legal recognition. Spouses in a customary marriage have the same rights and obligations as spouses in a civil marriage.
What if I am married both customarily and civilly to the same person?
You cannot validly conclude a civil marriage while a customary marriage subsists — it would be bigamy. Many people are only customarily married and unaware of the need for civil registration. The customary marriage is still valid.
Can a wife in a customary marriage own and inherit property?
Yes. The Constitutional Court in Bhe v Magistrate Khayelitsha (2004) struck down the rule of male primogeniture in customary law as unconstitutional. Women in customary marriages have full property and inheritance rights.