Guide · Family Law

The Types of Marriage in South Africa

Four ways couples marry, what each one requires, and what each one means for your property and your future.

South African law recognises more than one way to be married. Which law your marriage falls under decides who may marry, what makes the marriage valid, what happens to your property, and what it takes to end the marriage. Many of the disputes we see start with a couple who never knew which rules applied to them.

Worth knowing

Parliament is working on a single new Marriage Act that would bring all marriages under one law. It is not law yet. Until it is, the rules below apply.

Which Law Covers Your Marriage?

Marriage Act, 1961

Civil Marriage

Who: a man and a woman. Same-sex couples marry under the Civil Union Act instead.
Requirements: solemnised by a marriage officer before two witnesses, and registered. One marriage at a time.
Property: in community of property by default, unless you sign an antenuptial contract before the wedding.
Ends by: death, or divorce through the courts.
Civil Union Act, 2006

Civil Union

Who: any two people, 18 or older, same-sex or opposite-sex. The couple chooses whether to call it a marriage or a civil partnership.
Requirements: same as a civil marriage: marriage officer, witnesses, registration.
Property: identical to a civil marriage. Everything the law says about marriage applies to a civil union.
Ends by: death, or divorce through the courts.
Recognition of Customary Marriages Act, 1998

Customary Marriage

Who: couples marrying under the customary law of South Africa's indigenous African communities.
Requirements: both 18 or older, both consent, and the marriage is negotiated and entered into or celebrated according to customary law. Registration at Home Affairs is required, but an unregistered customary marriage is still valid.
Property: in community of property by default. A husband may marry a further wife only with a court-approved contract regulating the property of the marriages.
Ends by: death, or divorce through the courts. A traditional separation does not legally end it.
Read the full customary marriage guide
Religious ceremonies

Religious Marriage

Who: couples married by Muslim, Hindu, Jewish or other religious rites.
Requirements: a religious ceremony on its own is not automatically a legal marriage. It is fully valid in law when it is solemnised by an officiant who is also a designated marriage officer, and the marriage is then registered.
Property: depends on whether the marriage was also registered civilly, and on the couple's contract.
Muslim marriages: since 2024, spouses in a Muslim marriage can divorce through the courts with the same protections as civil marriages, including for their children, even if the nikah was never registered.

The Four Types at a Glance

Civil MarriageCivil UnionCustomary MarriageReligious Marriage
Governed byMarriage Act, 1961Civil Union Act, 2006Recognition of Customary Marriages Act, 1998Religious rites; civil law where also registered
Open toOpposite-sex couplesAny two adultsCouples marrying under African customary lawMembers of the faith
Key formalityMarriage officer + two witnessesMarriage officer + two witnessesNegotiated and celebrated per custom; register at Home AffairsReligious ceremony; legal effect needs a designated officer or civil registration
More than one spouse?NoNoA husband may, with a court-approved property contractNot under civil law
Default property positionIn community of propertyIn community of propertyIn community of propertyDepends on civil registration and contract
How it endsDeath or court divorceDeath or court divorceDeath or court divorceMuslim marriages: court divorce since 2024; others depend on civil status

The Three Property Regimes

Separate from the type of marriage is the question of what happens to what you own. South African law gives married couples three options.

The default

In Community of Property

If you marry without an antenuptial contract, this applies automatically.

  • Everything both of you own and owe becomes one joint estate
  • Debts are shared too, including debts from before the marriage
  • Big transactions can need both spouses' consent
  • On divorce, the joint estate is divided equally
ANC with accrual

Out of Community, With Accrual

Needs an antenuptial contract. The modern middle road.

  • What you each bring into the marriage stays yours
  • Each spouse's estate is protected from the other's creditors
  • Growth built up during the marriage is shared when it ends
  • Accrual applies automatically to an ANC unless you expressly exclude it
ANC without accrual

Out of Community, Without Accrual

Needs an antenuptial contract that expressly excludes the accrual.

  • Your estates stay completely separate, before and during the marriage
  • Each spouse keeps what they build up
  • No automatic sharing when the marriage ends
  • A 2023 Constitutional Court ruling lets a court, in some divorces, order a fair redistribution even under this regime, where one spouse contributed to the other's estate. It is not the absolute shield it once was

What an antenuptial contract actually is

An antenuptial contract, or ANC, is the agreement that takes you out of the default in-community position. It must be signed before a notary before the wedding and registered in the Deeds Office. Changing your property regime after the wedding is possible, but only through a court application, which is far more involved than getting the contract right the first time.

The pattern we see

Most property disputes in a divorce are not about the rules. They are about one or both spouses discovering, years too late, which rules applied to them. An hour of advice before a marriage is worth more than a year of litigation after it.

This guide is general information about South African law, current at the time of writing. It is not legal advice, and it is no substitute for advice on your own circumstances. Speak to an attorney before acting on anything here.

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