Many spouses in a valid customary marriage are told, often by a bank, an insurer, an employer, Home Affairs or a well-meaning family member, that they need to “make it official” by also getting married in court. The idea usually arrives as a request for proof: a marriage certificate the institution can accept. That is the problem Section 10 of the RCMA is often asked to solve. It is also the problem people most often misunderstand.
A customary to civil marriage conversion is a specific statutory step, not an upgrade and not a fresh start. It allows spouses who are already validly married by customary law to enter a civil marriage with each other under the Marriage Act, in defined circumstances. It changes some things, most notably the future matrimonial property position and the paperwork available to institutions, and it leaves other things untouched. This article explains what changing a customary marriage to a civil marriage under Section 10 actually does, who qualifies, what the property consequences are, and where the process most often goes wrong.
What Section 10 of the RCMA actually permits
The Recognition of Customary Marriages Act 120 of 1998 (RCMA) recognises customary marriages as legally valid marriages on par with civil marriages. Section 10 sits in that framework and provides a bridge into the Marriage Act 25 of 1961.
Read against the text of the Act itself, Section 10 does four things:
- Section 10(1) allows a man and a woman between whom a customary marriage subsists to contract a marriage with each other under the Marriage Act, provided neither of them is a spouse in a subsisting customary marriage with any other person.
- Section 10(2) provides that the resulting civil marriage is in community of property and of profit and loss, unless those consequences are specifically excluded by an antenuptial contract.
- Section 10(3) applies the relevant chapters of the Matrimonial Property Act 88 of 1984 to any such marriage that is in community of property.
- Section 10(4) provides that no spouse of a marriage entered into under the Marriage Act may, while that marriage subsists, enter into any other marriage.
Two points follow immediately. First, Section 10 does not create a new marriage in the ordinary sense. It permits the same two people to formalise their existing relationship under a second statutory regime. The customary marriage is not cancelled, terminated or absorbed by the civil marriage. Second, the section is narrowly drawn: only monogamous customary marriages qualify, and the civil marriage carries its own default property regime that must be actively addressed if the parties want anything other than community of property.
Only a monogamous customary marriage qualifies for conversion
The single most important qualifying rule sits in Section 10(1). Neither spouse may be a party to a subsisting customary marriage with any other person at the time the civil marriage is contracted.
In practical terms this means:
- If the husband is party to more than one valid customary marriage, Section 10 is closed to him. He cannot enter a civil marriage with any of his customary wives while those other customary marriages subsist.
- If either spouse is already married to a third person under the Marriage Act or the Civil Union Act 17 of 2006, Section 10 is likewise unavailable.
- If a previous customary marriage has ended, whether by death, divorce or dissolution, that ending must be capable of proof. An informal separation, or a marriage that “everyone knows is over”, is not the same as a legally dissolved marriage.
Eligibility is one of the first things an attorney should screen for. It calls for a careful conversation about every past and current marriage, including any customary marriage the client may regard as historical or informal. A misstatement here does not just cause administrative friction. It can invalidate the civil marriage and expose the parties to serious downstream disputes over property, inheritance and status.
What happens to your matrimonial property, and where an ANC fits in
This is where a customary to civil marriage conversion carries its heaviest consequences, and where clients are most often surprised.
Following Gumede v President of the Republic of South Africa, the default matrimonial property regime for a monogamous customary marriage is community of property. Where a pre-Act polygamous marriage is in issue, the Ramuhovhi v President of the Republic of South Africa framework applies. When the same spouses go on to enter a civil marriage under Section 10, Section 10(2) again defaults them into community of property and of profit and loss unless they specifically exclude those consequences by an antenuptial contract.
Two practical implications matter for anyone considering a civil marriage after customary marriage.
An antenuptial contract must be executed at the correct point in time. An antenuptial contract, by definition, is executed before the marriage it regulates. Where the parties want out of community of property for their civil marriage, the ANC must be signed and notarially executed before the civil marriage is solemnised. An ANC signed after the civil marriage is not an antenuptial contract at all.
Signing an ANC after customary marriage does not automatically fix everything. If the parties want to change the matrimonial property regime that already governs the customary marriage, they cannot do so by simply signing an ANC before the civil marriage. Where an existing regime is to be changed, Section 21 of the Matrimonial Property Act 88 of 1984 requires a court application, notice to creditors, and a court order. That process takes time, can be opposed, and is not guaranteed to succeed.
For most clients considering an ANC after customary marriage, the honest answer is that the ANC will govern the civil marriage going forward, but it will not retrospectively rewrite the property position that arose during the customary marriage. Where the outcome of that difference matters, for example where significant assets have already been accumulated, a Section 21 application may need to be considered separately.
An antenuptial contract is almost always worth advice at this point, even where the parties are content with community of property. Signing an antenuptial contract before the civil marriage is often the single most useful step a couple can take at the conversion stage.
The practical process, from consultation to Home Affairs registration
A civil marriage under Section 10 typically moves through the following stages. Timelines vary, and Home Affairs turnaround is not guaranteed.
- Consultation and eligibility screening. The attorney confirms that a valid customary marriage exists and subsists, screens for any other subsisting customary or civil marriage, and identifies the current matrimonial property regime.
- Property advice. The parties are advised on the default position under Section 10(2), on whether an ANC should be executed before the civil marriage, and on whether a Section 21 application is required to change an existing regime.
- ANC, if any. The antenuptial contract is drawn, signed by both parties before a notary, and registered in the Deeds Office within the prescribed period.
- Booking a marriage officer. The parties arrange the civil ceremony with an authorised marriage officer under the Marriage Act. Identity documents, and where relevant proof of the customary marriage, previous divorce orders or death certificates, are provided.
- Solemnisation. The civil marriage is solemnised in the manner required by the Marriage Act. The marriage register is signed by the parties, the marriage officer and the witnesses.
- Registration at Home Affairs. The marriage officer submits the marriage documentation to the Department of Home Affairs. Registration is not immediate, and there is no fixed guaranteed turnaround.
Where clients are converting specifically to obtain formal documentary proof of their marriage for banks, medical aid, employers, visas or emigration, they should understand that the delay between solemnisation and the issuing of a civil marriage certificate is a real risk. It is often a good idea to hold off on time-sensitive institutional applications until the civil marriage certificate is in hand.
Documents to gather before the first consultation
Preparation shortens the process and reduces the risk of surprises during eligibility screening. The most useful documents to bring are:
- Identity documents for both spouses.
- Any customary marriage registration certificate issued under Section 4 of the RCMA.
- Any existing antenuptial contract.
- Evidence of the customary marriage where it is unregistered: lobolo records, letters, receipts, photographs of the ceremony, and witness details.
- Death certificates or divorce decrees for any previous marriages.
- Any correspondence from Home Affairs, banks, insurers or employers that prompted the enquiry.
Where the customary marriage is unregistered, particular care needs to be taken to gather evidence of the ceremony and the lobolo negotiations before any dispute arises. Memories fade, family members become unavailable, and reconstructing a customary marriage after the fact is significantly harder than documenting it at the outset.
Customary to civil marriage conversion: common misconceptions
A number of misconceptions about customary to civil marriage conversion recur in consultations. Each of them causes real problems if left uncorrected.
“A civil marriage is more legally valid than a customary marriage.” It is not. A customary marriage concluded in accordance with customary law is a valid marriage in South African law. The reason clients often struggle is not that the customary marriage is legally inferior. It is that they cannot easily produce documentary proof of it, and institutions demand documentary proof.
“The civil marriage cancels the customary marriage.” It does not. The relationship is treated as one continuous marriage. Rights and obligations that arose under the customary marriage generally continue.
“A civil marriage or a late ANC will change our matrimonial property regime automatically.” It will not. Section 10(2) supplies the default property regime for the civil marriage going forward. Where the parties want to change the regime that already governs the customary marriage, a Section 21 application to court is generally required.
“If we convert, lobolo obligations fall away.” Lobolo is a matter of customary practice between families, and its status is fact-specific and culturally sensitive. Changing customary marriage to civil marriage does not, on its own, discharge lobolo.
“Home Affairs will sort this out quickly.” Home Affairs registration is not automatic and turnaround is not guaranteed. Time-sensitive applications should not assume immediate registration.
When the enquiry becomes a matter for legal advice or litigation
A Section 10 enquiry stops being a routine administrative step and becomes a legal matter whenever any of the following is in issue:
- Whether a valid customary marriage exists at all.
- Whether the marriage is truly monogamous, including where there is a suggestion or a rumour of another customary spouse.
- Whether an existing matrimonial property regime should be changed under Section 21 of the Matrimonial Property Act.
- Whether a Home Affairs record is incorrect, missing or disputed.
- Where the civil marriage question is caught up in broader family disputes about property, inheritance or the status of children.
- Where one spouse is not fully informed of the proprietary consequences of the civil marriage.
In these situations, the issue is no longer “converting the marriage”. It is protecting the parties’ legal rights, and the correct route may involve a court application rather than, or in addition to, a civil marriage ceremony. Where any of these factors is present, obtain legal advice before booking a marriage officer.
Where the law may be heading: the Marriage Bill
South Africa is in the middle of a broader reform process aimed at consolidating the Marriage Act, the Recognition of Customary Marriages Act and the Civil Union Act into a single Marriage Act. The draft Marriage Bill has been circulating in various forms and has not, at the date of this article, been enacted. Any changes it introduces will affect how Section 10 questions are answered in future, and clients who are considering a conversion should ask their attorney to confirm the current position at the time of the consultation.
Speak to a Family Law Attorney
If you are in a customary marriage and are considering a civil marriage, or if a bank, insurer or Home Affairs has told you your marriage is “not enough”, speak to a family law attorney before taking any step. Eligibility, the property regime, the timing of any ANC and the correct route for changing an existing regime all need to be assessed on your facts.
Our family law team advises on customary marriage registration, customary to civil marriage conversion, antenuptial contracts, and Section 21 applications to change an existing matrimonial property regime. To arrange a consultation, please contact us.
Frequently Asked Questions
Is a customary to civil marriage conversion the same as registering a customary marriage under Section 4?
No. Section 4 of the RCMA deals with the administrative registration of an existing customary marriage at Home Affairs. Section 10 deals with a separate step: entering a civil marriage under the Marriage Act while the customary marriage subsists. Many clients who think they need a Section 10 conversion in fact need Section 4 registration.
Can a husband with more than one customary marriage enter a civil marriage as well?
No. Section 10(1) of the RCMA requires that neither spouse is a spouse in a subsisting customary marriage with any other person. Where a husband is party to more than one valid customary marriage, Section 10 is not available to him.
Do we need an antenuptial contract before a civil marriage under Section 10?
Not compulsorily, but the default under Section 10(2) is community of property and of profit and loss. If you want to marry out of community of property, an antenuptial contract must be executed and notarised before the civil marriage is solemnised. Advice on an ANC is almost always worth taking before a civil marriage under Section 10.
Does a civil marriage after customary marriage change our existing property regime?
Not automatically. Section 10(2) supplies the property regime for the civil marriage going forward. Changing the regime that governs your existing customary marriage generally requires a court application under Section 21 of the Matrimonial Property Act 88 of 1984, with notice to creditors and a court order.
Can we sign an ANC after customary marriage instead?
An ANC signed after the customary marriage but before the civil marriage will regulate the civil marriage going forward. It will not, on its own, alter the property position that arose during the customary marriage. Where an existing regime needs to be changed, a Section 21 application is usually the correct route.
What happens to our customary marriage after the civil marriage is registered?
The customary marriage is not cancelled or replaced. The relationship is treated as one continuous marriage under both frameworks. Rights and obligations that arose during the customary marriage generally continue.
