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By Walter Combrink, Life Risk and Fiduciary Manager at Momentum Financial Planning
In South Africa’s changing risk landscape, the cross-over between tradition and formal law can create financial blind spots. A recent Constitutional Court ruling made it clear that the legal consequences of a customary marriage begin the moment two people enter into a customary marriage and not when they later walk down a church aisle or sign a register at Home Affairs.
Understanding the consequences of customary marriages is therefore essential for effective estate planning and asset protection.
The myth that the civil marriage overrides the customary marriage
Many couples in a customary marriage assume that their subsequent civil wedding is the point at which their legal marital regime begins. They may even sign an Antenuptial Contract (ANC) just before the civil ceremony, believing they are marrying out of community of property.
The law, however, sees this differently. The Constitutional Court has ruled that a customary marriage is a full legal union. If a couple later enters into a civil marriage with each other, it is regarded as one continuous marriage.
The risk is that if an ANC was not signed before the customary rites were concluded, the couple is automatically married In Community of Property (COP). Any ANC signed later for the civil ceremony is invalid unless the couple follows a costly High Court process to change their matrimonial regime.
When the past challenges the present
Disputes don’t only arise when in-laws raise concerns; they can also manifest during high-stakes life stages such as divorce or death.
Consider an individual who was customarily married years ago but never registered the union with Home Affairs. If that client later remarries another person civilly without legally divorcing the first spouse, a double marriage conflict is created.
The law views the first customary marriage as valid while the second civil marriage is generally considered invalid. Upon death, the first spouse can claim half of the joint estate. The second spouse may find themselves with no legal claim to assets they believed were theirs, leading to expensive and lengthy litigation to prove or disprove the existence of the first union.
Government has set 31 August 2026 as the deadline for registering all existing customary marriages. Failing to register does not make the marriage invalid, but it makes proving it much harder. Without a marriage certificate, executors cannot easily move assets, and surviving spouses may struggle to claim pension fund death benefits or life insurance payouts.
The absence of a marriage certificate does not invalidate a customary union, but it creates a massive evidentiary burden. In the eyes of the law, certainty is the best protection for your legacy.
Treatment of assets and estate administration
From a financial planning perspective, the “Default to COP” rule is the most significant variable.
In a customary marriage without a prior ANC, all assets and liabilities are merged into a joint estate. This includes debt. On the death of a spouse, the surviving spouse immediately owns 50% of the joint estate. The remaining 50% is distributed according to the deceased’s will or the laws of intestate succession. If the deceased had multiple customary spouses (polygamous), the division becomes exponentially more complex, often requiring court intervention to determine the equitable distribution of the deceased’s assets.
Checklist for clients and advisers
To ensure financial resilience and avoid fragmented legacy outcomes, we recommend a proactive partnership approach:
- Sign the ANC early: If the intention is to marry out of community of property, the ANC must be signed before the first customary rites are finalised.
- Register immediately: Don’t wait for the white wedding and instead register the customary union at Home Affairs as soon as possible to obtain a marriage certificate.
- Audit marital status: Advisers should explicitly ask clients if any lobola or customary negotiations have taken place, as this determines the starting point of their legal estate.
- Update wills: Ensure that wills accurately reflect the marital regime. A will that assumes Out of Community status when the law sees In Community can lead to a failed estate plan.
The Role of Professional Guidance
Navigating the intersection of customary tradition and statutory law is not a DIY task. Engaging both a legal professional and a financial adviser is crucial. A lawyer ensures that your matrimonial contract is notarised and registered correctly before any traditional rites begin, while a financial adviser can structure your estate to protect assets from shared liability and ensure your family’s future is secure.
Understanding that customary marriages are not informal arrangements and carry the same weight as any other legal union in South Africa helps families avoid the emotional and financial strain of post-death litigation – and ensures that financial advisers treat them as structural pillars of their clients’ financial foundations.