Separated but Still Married: A Legal Reality Many South Africans Overlook
A growing number of South Africans are quietly separating from customary marriages without ever formally dissolving them. In practice, many simply move on with their lives, form new relationships, and in some cases even enter into civil marriages, believing that the passage of time, family agreement, or the absence of registration brings the customary marriage to an end.
According to family law practitioners, this belief is legally incorrect and increasingly problematic. As an attorney who specialises in customary marriage divorces, I have seen a marked rise in disputes rooted in this very misconception. Whether registered or not, a customary marriage remains legally binding until a court grants a decree of divorce. Separation alone, no matter how longstanding or amicable, does not terminate the marriage. South African law is clear on this point.
The Recognition of Customary Marriages Act affords customary marriages full legal status.
In terms of section 3 of the Act, a customary marriage is valid if the prospective spouses are both above the age of 18, they both consent to be married to each other under customary law, and the marriage is negotiated, entered into, or celebrated in accordance with customary law.
Registration is an administrative process intended to record the marriage, not to create or dissolve it. Where the essential requirements of a customary marriage were met, the marriage exists in law until formally dissolved by a court.
Aftermath of Undissolved Customary Marriages:
The consequences of ignoring this legal reality often surface years later, most commonly when a spouse passes away. In deceased estate matters, the law does not concern itself with who last shared a home with the deceased or who they intended to benefit. The determining factor is whether a lawful marriage subsisted at the time of death. Where a customary marriage was never dissolved, the surviving customary spouse retains full legal standing, regardless of how long the parties may have lived separate lives. This frequently comes as a shock to families.
I have dealt with estates where relatives, and even later partners, are confronted with the fact that a former partner from decades earlier remains, in law, the surviving spouse. This can affect inheritance under intestate succession, claims against the estate, and the distribution of assets that the deceased believed were already accounted for.
Subsequent Civil Marriage:
The situation becomes even more complex where a person, believing themselves to be unmarried, enters into a subsequent civil marriage while still bound by a customary one. Such civil marriages may be rendered void or legally vulnerable, leaving the later spouse without the protections they assumed they had. These realities often only come to light when litigation arises or when the estate of a deceased must be administered.
Registration of Customary Marriages:
Unregistered customary marriages present an additional layer of risk. A persistent myth suggests that if a customary marriage was never registered with the Department of Home Affairs, it has no legal force. Courts have repeatedly rejected this notion. Unregistered customary marriages are enforceable, provided their existence can be proven. In practice, this means that individuals who separate informally from such marriages may feel legally secure, only to face significant difficulty later when the marriage resurfaces in estate or succession proceedings.
Beyond the legal implications lies a very real human cost. These matters are seldom abstract disputes. They involve families, dignity, and the protection of loved ones. Clients often approach my office believing their past is settled, only to discover that an unresolved customary marriage has undone years of planning and emotional closure.
From a director’s perspective, the message is consistent and unavoidable. Customary marriages must be properly dissolved through the courts. Addressing the issue while both parties are alive and able to participate brings certainty, protects future relationships, and prevents avoidable hardship for families left behind. Customary marriages carry the same legal weight and consequences as civil marriages.
Walking away does not undo them. For those separated from a customary marriage, whether registered or not, the responsible course is not delay or assumption, but decisive legal finality obtained with proper guidance.
Need assistance dissolving your customary marriage? You may contact our office at 015 023 0013 or 079 809 1300, or email us at info@mjmattorneys.co.za to schedule an appointment. You may also use our digital calendar: https://calendly.com/info-f5m/mjmattorneysinc