Between law and custom
The dissolution of unregistered customary marriages by death in South Africa
Bibliographic Data
| ID | 22257580 |
|---|---|
| Authors | Asive Gova (0000-0002-7236-7528, Walter Sisulu University), Kudzai Mpofu (0000-0002-8483-7793, Walter Sisulu University) |
| Year | 2026 |
| Volume | 7 |
| Issue | 5 |
| Pages | 1385 |
| Publication date | 2026-06-26 |
| Open Access | Yes |
| Type | ARTICLE |
| Venue | E-Journal of Humanities Arts and Social Sciences (JOURNAL) |
| Journal identifiers | ISSN: 2720-7722 • E-ISSN: 2720-7722 |
| Publisher | Noyam Publishers (PUBLISHER) |
| DOI | 10.38159/ehass.20267517 |
| OpenAlex | W7166525002 |
| Language | EN |
| References cited | 13 |
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
Certainty · Conciliation · Family law · High Court · Law reform · Legal guardian · Legislation · Legislature · Mediation · Land Rights and Reforms · Legal Issues in South Africa · South African History and Culture
| Highly cited | No |
|---|