Recently, a friend of mine informed me about a situation involving her brother-in-law. A few years ago, he married a woman in terms of a customary marriage in a rural area. After some time, the couple separated and went their separate ways, but the marriage was never formally dissolved in accordance with customary or statutory requirements. Later, he moved to the city and entered into a civil marriage — a “white wedding” — with another woman. Importantly, the second wife was aware of his prior customary marriage but nevertheless proceeded with the civil ceremony, believing that it would carry greater legal and social recognition.

Legally, that second marriage is not valid because the first marriage was never formally ended.

In South Africa, a civil marriage can only take place if all previous marriages are properly dissolved. To avoid problems with property, maintenance, or inheritance, anyone in this situation should formally end their previous marriage in court and seek legal advice to protect everyone involved, including children.

1. According to Section 3 of the Recognition of Customary Marriages[1], for a customary marriage entered into after the commencement of this Act to be valid, the following needs to take place:

   a) the prospective spouses,

    (i) must both be above the age of 18 years; and

   (ii) must both consent to be married to each other under customary law; and

   (b) the marriage must be negotiated and entered into or celebrated in accordance with customary law.

2. Section 8 provides that a customary marriage may only be dissolved by a court on the ground of irretrievable breakdown.
3. In Mbungela and Another v Mkabi and Others[2],

   The case dealt with whether the marriage between the respondent and the late Ms Mbungela was valid under the Recognition of Customary Marriages Act 120 of 1998 (RCMA), specifically s 3(1)(b) which requires the marriage to be negotiated and entered into or celebrated in accordance with customary law

   The Court emphasised that customary law is a living, evolving, flexible system which must be interpreted in a way consistent with the Constitution, including dignity, equality and other rights.

   Importantly, the Court held that the ceremony of handing over of the bride (bridal transfer) is “not necessarily a key determinant” of a valid customary marriage.

   Likewise, it held that full payment of lobola (bride‑price) is not always required if other essential components are met and the parties have proceeded on the basis of intending a customary marriage.

   The Court looked at the parties’ conduct (cohabitation, mutual recognition by families, exchange of gifts) as evidence of the existence of a customary marriage, even if some ritual steps were missing.

   Therefore, if the first marriage is valid under customary law, then any subsequent civil marriage entered without first dissolving the customary marriage is automatically void.

4. In Manwadu v Manwadu and Others[3]

   The court considered whether a customary marriage between Matodzi Joyce Manwadu and Livhuwani Robert Manwadu had been validly concluded in 1979, and whether a subsequent civil marriage between the deceased and the appellant was valid under the Recognition of Customary Marriages Act 120 of 1998. The dispute turned on proof of the customary marriage.

   As noted by the court in paragraph 57 of the judgment, the respondent failed to present any admissible evidence demonstrating that the customary marriage and associated traditional practices were observed. No confirmatory affidavits were submitted to verify that the formal requirements of the customary marriage were fulfilled. Alleged witnesses to the customary marriage proceedings were uncorroborated, and no affidavits were provided to substantiate her account of the ufhelekedza—her stay with the deceased’s family—or the dzipheletshedzi, during which unnamed young girls attended her. Furthermore, none of the deceased’s family members confirmed her assertions that the deceased admitted to her pregnancy or that a customary marriage or lobola negotiations had taken place; they denied these claims. The court emphasized that a customary union involves the participation of both families, not just the couple.

5. Do the rulings in Manwadu v Manwadu and Others and Mbungelo v Mkabi and Others, support each other, or do they take different positions on customary marriages?

5.1)     In my view, the decisions are consistent with each other and provide clear guidance on customary marriages. Both cases make it clear that a customary marriage is not just about two people agreeing to be married—it requires participation of both families, proper traditional ceremonies, and supporting evidence from witnesses or family members,

5.2)     The difference between the two cases lies in the evidence presented. In Manwadu v Manwadu, the person claiming the marriage could not provide any corroborated proof, and the deceased’s family denied the marriage ever took place, so the court could not recognize it.

5.3)     In Mbungelo v Mkabi, however, the claimant produced clear evidence that the traditional ceremonies were observed and that the families were involved, so the court recognized the marriage.

These cases show that while the law allows recognition of customary marriages, such recognition depends entirely on credible proof and involvement of the families- something anyone claiming such a marriage should be aware of.