If Your Customary Marriage Wasn’t Registered—You Still Have Legal Options
In South Africa, customary marriages are fully recognised under the Recognition of Customary
Marriages Act 120 of 1998. But what if your spouse passes away before the marriage is officially
registered with Home Affairs?
Many people wrongly assume they lose all rights in this situation. The truth is, you may still be able
to prove your marriage in court—and claim what is legally due to you.
Is a Customary Marriage Valid Without Registration?
In South Africa, for a customary marriage to be legally valid under the Recognition of Customary Marriages Act 120 of 1998, three key requirements must be met:
- Consent of the parties
- Age Requirement: Both parties must be over the age of 18.
- Marriage must be practiced, negotiated or celebrated in accordance with Customary Law
Important: While registration with the Department of Home Affairs is required for administrative purposes, failure to register does not automatically invalidate the marriage. However, it does make it harder to prove.
What to Do If Your Spouse Passes Away Before Registration
You may apply to the High Court to recognise your customary marriage posthumously. The court will
look at evidence such as:
- Lobola negotiations and payment
- Ceremonial practices and family involvement
- Cohabitation and how the community viewed your relationship
- Any intent to register the marriage
Key Case: MM v MN and Another [2010] ZAGPJHC 61
In this case, the court upheld an unregistered customary marriage, citing lobola payment,
traditional ceremony, and the couple living as husband and wife. The surviving spouse was granted
inheritance rights.
Why It Matters
If the court recognises your marriage, you could:
- Claim from your late spouse’s estate
- Access spousal benefits (e.g. pensions or UIF claims)
- Apply for maintenance as a surviving spouse
- Protect your property and financial interests
What to Do Next
If you’re in this situation:
- Contact a family law attorney immediately.
- Gather all available evidence: lobola letters, photos, witness statements, proof of cohabitation, etc.
At Mashitisho Attorneys Inc., we can help you bring an application to have your marriage
recognised and protect your legal rights.
