18/06/2025
When Tradition Meets Law: Why You Must Formally End a Customary Marriage Before Remarrying
Author: Roy Bregman, Attorney Published: 2025
South Africa proudly recognises both civil and customary marriages, honouring the country’s rich traditions while ensuring legal protection for all. But this dual system means certain procedures—especially around divorce—can’t be ignored.
A recent High Court case (NN and Others v BN and Others, 2025) made that crystal clear: a customary marriage must be formally ended in court before you can legally marry again.
The Story Behind the Ruling
A man married his first wife under customary law in 1978. The marriage was valid: lobola was paid, rituals observed, and family witnessed the union. Years later, they separated—but never legally divorced.
In 2017, the man married a second woman in a civil ceremony. She believed he was single. But when he died in 2023, the first wife came forward. The court had to decide: was the civil marriage valid?
What the Court Decided
• The first, customary marriage was still legally binding—it had never been dissolved by a court.
• The second, civil marriage was declared null and void.
• The first wife was recognised as the legal spouse, and her children as the lawful heirs.
• The Department of Home Affairs was ordered to register the customary marriage.
• The second wife was ordered to pay the legal costs.
Why This Matters
This case reinforces important truths about South African marriage law:
• Customary marriages are real marriages. They carry the same legal weight as civil unions.
• Separation is not the same as divorce. A court must formally dissolve a customary marriage before you remarry.
• Unregistered does not mean invalid. A customary marriage can be lawful even without registration—if all cultural requirements were met.
• A second marriage won’t stand. Any marriage contracted while a prior customary one still exists is not valid.
Frequently Asked Questions (FAQs)
1. Can I end a customary marriage without going to court?
No. The Recognition of Customary Marriages Act requires that only a court can dissolve such a marriage—based on irretrievable breakdown. Walking away or mutual agreement is not enough.
2. Is a civil marriage valid if one spouse is still in a customary marriage?
No. That civil marriage is automatically void because the first marriage is still legally binding.
3. Does a customary marriage have to be registered to be valid?
Not necessarily. While registration is important for administrative clarity, failure to register does not invalidate the marriage.
4. What happens to a person’s estate if their customary marriage wasn’t dissolved and they remarry?
The lawful customary spouse and their children will be recognised as legal heirs. A subsequent marriage has no legal force, which could complicate inheritance and estate planning.
5. What if my partner told me they were divorced but weren’t?
Unfortunately, your legal standing may be affected. Always verify marital status through legal channels before marrying.
Final Thoughts
Whether you're married under tradition or civil law, respecting legal process is essential. This case shows how easily rights can be lost—or upheld—depending on whether the proper steps were followed.
If you're unsure about your marital status, or planning to remarry, speak to a legal professional. It's not just about tradition—it's about protecting yourself and your future.
