Customary marriages remain one of the most misunderstood areas of South African family law, particularly when separation, lobola, and multiple marriages intersect.
A common question we receive is:
What happens if a man pays lobola, separates without divorcing, and then pays lobola again?
Separation Does Not End a Customary Marriage
Under South African law, a customary marriage does not end when parties separate.
It continues to exist until:
• A court grants a decree of divorce, or
• One spouse passes away.
This means that even if spouses live apart for years, the marriage remains legally valid.
Paying Lobola Again: Is the Second Marriage Invalid?
If a man pays lobola again and enters into a second customary marriage while the first marriage still exists, the second marriage is not automatically invalid.
Customary law recognises polygynous marriages.
However, the law imposes an important safeguard.
The Court Approval Requirement
Before entering into a further customary marriage, the husband is required to apply to court for approval of a written contract regulating the matrimonial property system of the marriages.
This requirement exists to:
• Protect the proprietary rights of all spouses
• Prevent financial prejudice
• Ensure fairness between households
What If Court Approval Was Not Obtained?
Where the husband fails to obtain court approval before concluding the second marriage, the courts will generally not invalidate the marriage. Instead, the court will intervene to regulate the consequences.
In practice, the court may:
• Declare the second marriage out of community of property,
• Determine a specific marital regime based on the circumstances, or
• Adjust property rights to prevent unfairness, particularly to the first wife.
The courts have made it clear that technical non-compliance should not be used to escape responsibility, especially where women and children would be prejudiced.
The Legal Reality
• Paying lobola again does not cancel the first marriage
• The second customary marriage is usually valid
• Failure to obtain court approval exposes the husband to judicial control over property consequences
Final Thoughts
Customary marriages carry full legal recognition and serious legal consequences. Separation, informal arrangements, or cultural assumptions do not override statutory requirements.
If you are separated under customary law, considering another marriage, or facing a dispute involving lobola and marital property, early legal advice is essential.
📌 Mashitisho Attorneys Inc
Family Law | Customary Marriages | Divorce & Property Disputes
