Customary marriages: What couples risk by missing the August 31 deadline

Couples married under customary law have until 31 August 2026 to register their unions under a special registration period being offered by the Department of Home Affairs.

While failing to register does not automatically invalidate a customary marriage, legal experts warn that couples could face a range of complications when they need to prove their marital status.

Home Affairs is urging qualifying couples to register before the deadline, particularly as queues are expected to increase in the final days.

“The department urges qualifying couples to register without delay to avoid unnecessary queues as the deadline approaches,” the department said.

Attorney, notary, and entrepreneur Tebello Motshwane, founder of Sister In Law, said an unregistered customary marriage remains valid, but the absence of a certificate can make proving the marriage more difficult.

“An unregistered customary marriage is a valid marriage. However, the absence of a marriage certificate creates several administrative challenges,” Motshwane said.

It is explained that a marriage certificate provides easily accessible evidence that a couple is married. Without one, Motshwane said, spouses may have to provide additional evidence when dealing with third parties such as banks, insurance companies, employers, and other institutions.

“When there is no certificate to produce, the burden of proof becomes greater,” she said.

The consequences can be particularly serious when a spouse dies without a will.

Motshwane said a surviving spouse could face difficulties establishing their right to inherit and, in some circumstances, may have to approach the High Court to confirm the existence of the customary marriage.

“This can result in additional legal costs and delays at an already difficult time,” she said.

There are also potential complications involving surname changes, spousal benefits, jointly held property, and other matters requiring proof of marital status.

What makes a customary marriage valid?

According to Motshwane, both parties must be 18 or older, must consent to being married under customary law, and the marriage must have been negotiated, celebrated, and entered into in accordance with customary law.

Contrary to a common perception, lobola is not a requirement for the validity of a customary marriage.

“However, if it is paid, it proves that the marriage was negotiated in accordance with custom,” she said.

And for those who miss the deadline, Motshwane said the marriage does not simply disappear. However, registering it later may involve additional documentation, administrative steps, or legal assistance, potentially making the process more complicated.

Legal expert Malani Papiah said registering a customary marriage is important not only for administrative purposes, but also because it provides couples with clear proof of their legal status.

“A certificate does not create the marriage, it provides accessible proof of a marriage that already exists in law,” Papiah said.

She warned that couples who remain unregistered could face difficulties when dealing with banks, the Master of the High Court and other institutions, particularly when a spouse dies and the surviving partner has to prove the marriage to access an estate.

Papiah also highlighted an often-overlooked consequence involving property. Where a customary marriage is concluded without an antenuptial contract, spouses are generally married in community of property.

She said couples cannot simply sign an antenuptial contract years after the marriage and expect it to change their matrimonial property regime.

“The registration of the marriage is therefore an important step in ensuring that the legal relationship is properly documented and can be readily proved when needed.”