A special registration period, published in the government notice 5484, utilizing statutory powers under section 4(3)(b) of the Recognition of Customary Marriages Act 120 of 1998 (RCMA) which began on 1 September 2024, enables parties to validly concluded customary marriage, that were not registered within the prescribed period, to regularise their marital status.

This includes marriages concluded before the Recognition of Customary Marriages Act, which came into effect in November 2000, as well as those concluded thereafter but not registered within the required time frame.

This grace period was created to address over a million legacies of unregistered customary unions concluded prior to 15 November 2000 (when the RCMA took effect) and in subsequent years, remaining unregistered past the 3-month window. 

1.  What does missing the deadline mean? 
Non-registration does not render a customary marriage invalid. Section 4(9) of the RCMA explicitly states: “Failure to registrar a customary marriage does not affect the validity of that marriage.”  

If the substantive requirements under section 3(1) of the RCMA are satisfied, the union exists lawfully from the moment of celebration, regardless of home affairs issuing a certificate. 

2.  Why does the registration matter? 
While failure to register does not nullify the marriage, unregistered unions create practical and server hurdles during divorce, estate and inheritance, patrimonial and posthumous disputes. 

3.  The South African courts have constantly drawn a distinction between statutory registration and substantive validity under living customary law as follows: 

3.1  In Mbungela & Another v Mkhabi & Another (2020 (1) SA 41(SCA)), the supreme court of appeal held that failure to register a customary marriage under section 4 does not invalidate it. The court emphasized that the primary purpose of registration is evidence to prove its existence rather than constitute. 

3.2  In Mabuza v Mbatha (2003 (4) SA 218(C)), the court ruled that formal registration is an administrative step. It further held that non-compliance with certain traditional practices does not invalidate a customary marriage if the parties clearly intended to enter into a binding union and was negotiated. 

3.3  Mabena v Letsoalo (1998 (2) SA 1068 (T)) established that customary marriage law is dynamic and evolving (“living law”). The validity of a customary union depends on the actual lived practices and consensus between families at the time, not strict adherence to historic codified rules. 

In conclusion, missing the registration deadline does not invalidate an otherwise lawful union provided the requirements of Section 3(1) are met. 

However, the line between a legally valid customary marriage and the proof thereof is where potential disputes and hurdles are likely to arise. An unregistered marriage leaves spouses vulnerable when dealing with contentious legal issues. While in the cases mentioned above, protect the rights of customary spouses despite non-registration, taking advantage of the registration window remains effective and proactive to secure formal recognition and protecting yourself and spouse from future litigation.