Discover how South African law treats the dissolution of customary marriages and the impact on subsequent civil marriages, with insights from a landmark 2025 High Court judgment of NN and Others v BN and Others

Written by Roy Bregman, admitted attorney with over 51 years’ experience in South African family and matrimonial law. Read more about Roy Bregman

Introduction: Legal Principles Governing Customary and Civil Marriages

South African law recognises both customary and civil marriages, each with distinct legal requirements and consequences. The Recognition of Customary Marriages Act 120 of 1998 (RCMA) is the primary statute governing customary marriages, affirming their validity and setting out the processes for their recognition and dissolution. A central legal principle is that a customary marriage, once validly concluded, can only be dissolved by a court decree on the ground of irretrievable breakdown—not by separation, desertion, or mutual agreement. This ensures legal certainty and protects the rights of spouses and children under customary law.

The RCMA also addresses the potential overlap between customary and civil marriages, clarifying that a civil marriage contracted while a customary marriage is still in existence is invalid. The Act’s requirements are designed to prevent legal confusion and protect the integrity of both forms of marriage.

Legal and Constitutional Framework

The Constitution and Customary Law

The South African Constitution explicitly recognises customary law as an integral part of the legal system, provided it is consistent with constitutional principles and the Bill of Rights. Courts are required to interpret customary law in a manner that promotes the spirit and objectives of the Bill of Rights, ensuring that customary practices evolve in line with constitutional values.

The Recognition of Customary Marriages Act (RCMA)

Key provisions of the RCMA include:

• Section 2(1): Recognises all valid customary marriages existing at the commencement of the Act for all legal purposes.
• Section 4: Sets out the requirements for registration but clarifies that non-registration does not invalidate a customary marriage.
• Section 8(1): States that a customary marriage may only be dissolved by a court decree on the ground of irretrievable breakdown.

Case Law Discussion: NN and Others v BN and Others (2025)

Factual Background

In this recent High Court case, the applicants sought an order declaring a civil marriage between the first respondent and the deceased null and void, on the basis that the deceased was already married to the first applicant by customary law. The first applicant had married the deceased in 1978 through customary rites, with all traditional requirements—including lobola—fulfilled and witnessed by family and community leaders. The marriage was not registered, but the RCMA makes clear that registration is not a prerequisite for validity.

The first applicant and the deceased separated in 1998 but never obtained a divorce decree. After the deceased’s death in 2023, the first applicant discovered that he had entered into a civil marriage with the first respondent in 2017. The first respondent claimed she was unaware of any existing marriage, asserting that the deceased had expelled the first applicant and that she herself had undergone customary rituals with the deceased’s family.

Legal Issues

The core legal question was whether the customary marriage between the first applicant and the deceased had been dissolved prior to the civil marriage with the first respondent. The court had to determine whether separation, desertion, or expulsion could dissolve a customary marriage, or whether a formal court decree was required.

Court’s Analysis

The court affirmed that customary law is dynamic and must be interpreted in line with constitutional values and evolving community practices. However, it stressed that the RCMA is unequivocal: only a court can dissolve a customary marriage, and only on the ground of irretrievable breakdown. The court cited several authorities, including the Supreme Court of Appeal in Tsambo v Sengadi and Rudzani Netshituka v Joyce Munyadizwe Netshituka, which confirmed that a civil marriage contracted during the subsistence of a customary marriage is a nullity.

The court rejected the first respondent’s argument that desertion or expulsion by the deceased constituted dissolution of the marriage. It held that, absent a court decree of divorce, the customary marriage remained valid and subsisting. The court also noted that the first applicant’s version was corroborated by affidavits from family and community leaders, whereas the first respondent’s claims lacked independent support.

Judgment

The court made the following key orders:

1. The civil marriage between the deceased and the first respondent was declared null and void ab initio, as it was contracted during the subsistence of a valid customary marriage.
2. The customary marriage between the first applicant and the deceased was declared valid.
3. The Department of Home Affairs was ordered to register the customary marriage within fifteen days.
4. The deceased’s estate was to be administered considering the first applicant as the lawful wife and her children as the deceased’s legitimate heirs.
5. The first respondent was ordered to pay the costs of the application.

Conclusion: Legal and Practical Implications

This judgment provides authoritative guidance on the dissolution of customary marriages and the legal status of subsequent civil marriages. It reinforces that:

• Customary marriages can only be dissolved by a court decree, not by mutual agreement, desertion, or expulsion.
• Civil marriages contracted during the subsistence of a customary marriage are null and void.
• Registration is not required for the validity of a customary marriage but is necessary for administrative purposes.

For consumers and legal practitioners, this case underscores the importance of obtaining a court order to dissolve a customary marriage before entering into any subsequent marriage, civil or customary. Failure to do so can have significant legal consequences, including the invalidation of later marriages and complications in estate administration.

Frequently Asked Questions (FAQ)

Q1: Can a customary marriage be dissolved without going to court?
No. Under the RCMA, only a court can dissolve a customary marriage, and only on the ground of irretrievable breakdown.

Q2: Is a civil marriage valid if one spouse is already married under customary law?
No. A civil marriage contracted during the subsistence of a customary marriage is null and void.

Q3: Does a customary marriage need to be registered to be valid?
No. Registration is required for administrative purposes but is not a prerequisite for validity.

Q4: What are the implications for estate administration if a customary marriage is not dissolved?
The spouse and children from the customary marriage retain their rights as lawful heirs, and any subsequent marriages contracted without dissolution are invalid.