Between law and custom: The dissolution of unregistered customary marriages by death in South Africa

Between law and custom: The dissolution of unregistered customary marriages by death in South Africa

Asive Gova & Kudzai Mpofu

Issue: Vol. 7 No.5 2026 Article 17 pp.1385 – 1396
DOI: https://doi.org/10.38159/ehass.20267517 Published online 26th June 2026

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ABSTRACT

The dissolution of marriage by death is settled in South African law, yet death within an unregistered customary marriage produces uncertainty and unequal outcomes. Despite the Recognition of Customary Marriages Act 120 of 1998, many unions remain unregistered because of socio-cultural and administrative barriers. This article therefore analysed the legal consequences of death, incapacity, and disappearance for spouses in such unions, focusing on inheritance, burial decision-making, guardianship and medical consent. Drawing on jurisprudence, including Bhe v Magistrate, Khayelitsha, Gumede v President of the Republic of South Africa, Hassam v Jacobs NO, and High Court decisions on burial rights, the article revealed that courts have advanced equality, yet procedural gaps persist, especially in polygynous households and in instances where marriages are valid but undocumented. The argument is twofold. First, legislative reform should introduce presumptive recognition of unregistered customary marriages, clarify status-update procedures at the Department of Home Affairs, and codify hierarchies for medical decision-making consistent with living customary law and section 39(2) values. Second, culturally responsive mediation anchored in traditional leadership and court oversight should be institutionalised for disputes about status, burial, and child care. The article proposes a constitutionally compliant hybrid framework to secure dignity, equality, and legal certainty and fairness for surviving spouses and children.

Keywords: Customary Marriages, Presumption of Death, Medical Consent, Burial Rights.

BIBLIOGRAPHY

Legislation

Children’s Act 38 of 2005.

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ABOUT AUTHOR(S)

Ms Asive Gova holds a Bachelor of Laws (LLB) from the University of South Africa (UNISA) and a Master of Laws (LLM) from Walter Sisulu University (WSU), where she specialised in Private Law with a focus on Customary Law. Her research examines the interaction between customary legal systems, constitutional values, and the protection of women’s rights in South Africa. She has a strong interest in gender equality, access to justice, and the role of law in advancing financial inclusion for women and vulnerable communities.

Dr Kudzai Mpofu is a Senior Lecturer in the School of Law at Walter Sisulu University. He holds an LLB and LLM from the University of Venda and an LLD in Mercantile Law from the University of the Free State. His research focuses on insolvency law, business rescue, cross-border insolvency and commercial law. His scholarship explores the intersection of corporate restructuring, international commercial law, and access to justice, with a particular interest in developing legal frameworks that promote economic sustainability and financial resilience for small businesses in South Africa.

TO CITE ARTICLE

Gova, Asive, and Kudzai Mpofu. “Between law and custom: The dissolution of unregistered customary marriages by death in South Africa.” E-Journal of Humanities, Arts and Social Sciences 7, no.5 (2026): 1385 – 1396. https://doi.org/10.38159/ehass.20267517