Proving a Customary Marriage: Guidance from the Supreme Court of Appeal

The decision in Tshivhase v Tshivhase N.O. and Another (2025) arose from a dispute between two women, each claiming to be the lawful spouse of the deceased, and raised important questions about the proof and validity of customary marriages in South African law. The first respondent alleged that she had entered into a customary marriage with the deceased in 1966. On that basis, she sought to have a later civil marriage, concluded in 1977 between the deceased and the appellant, being the wife that the deceased married civilly, declared void from the outset. If successful, this would also have invalidated the joint will of the deceased and the civil wife, which excluded the respondent and her children.

The appellant disputed that any customary marriage had ever existed and relied instead on the formally registered civil marriage. In support of her claim, the respondent produced only an entry in her identity document reflecting the deceased’s surname. The High Court, hearing the matter initially, accepted this as sufficient proof, declared the civil marriage invalid, and set aside the will.

On appeal, however, the Supreme Court of Appeal took a different view. It emphasised that an identity document is not equivalent to a marriage certificate and cannot, on its own, establish the existence of a customary marriage where that marriage is disputed. The court reiterated that a valid customary marriage requires proof of both compliance with customary law, such as lobola negotiations and the performance of relevant rituals, and adherence to the statutory requirements set out in the Recognition of Customary Marriages Act. In this case, the respondent failed to provide any supporting evidence of these essential elements, such as witness testimony or documentation from the families involved.

Because the existence of the customary marriage was not proven, the court held that the subsequent civil marriage remained valid. As a result, the joint will executed by the deceased and the appellant could not be set aside. The court also addressed a procedural flaw in the High Court proceedings, noting that the beneficiaries under the will had a direct and substantial interest in the matter and should have been joined to the litigation. Their exclusion rendered the earlier proceedings defective.

The Supreme Court of Appeal accordingly upheld the appeal, set aside the High Court’s order, and dismissed the respondent’s claim with costs. In doing so, it provided important clarity on the evidentiary burden required to prove a customary marriage.

More broadly, the judgment highlights the ongoing legal vulnerability of individuals, particularly women, whose customary marriages have not been formally documented or registered. It underscores the importance of complying with both customary practices and statutory requirements, such as registration of the marriage, to afford the parties legal recognition. Ultimately, the case serves as a cautionary reminder that, without clear and credible proof, the existence of a customary marriage may not be recognised, with significant consequences for marital status, inheritance, and property rights.

Author: Andrea Goldman