Does Ilobolo Constitute a Valid Marriage?

The short answer is: yes.

Under South African law, the payment of ilobolo even if paid partially can constitute a valid customary marriage, even where other customary rites such as umembeso, mabo or ukuthelwa ngenyongo have not yet taken place.

This position was confirmed in Mgenge v Mokoena (2023), where the court held that once ilobolo negotiations are concluded and payment has commenced in accordance with customary law, a valid customary marriage may exist. Importantly, registration of the marriage at the Department of Home Affairs is not a requirement for validity. Failure to register does not render the marriage invalid or unenforceable.

In the absence of an agreement to the contrary, a customary marriage is deemed to be in community of property.

How Can You Avoid an Automatic Community of Property Marriage?

If you and your partner do not intend to be married in community of property, you must enter into an antenuptial contract (ANC) before the conclusion of ilobolo negotiations.

An antenuptial contract provides clarity on the intended matrimonial property regime, even where the parties intend to register a civil marriage at a later stage once all customary processes have been completed.

In LNM v MMM (2021), the court held that once the requirements of the Recognition of Customary Marriages Act 120 of 1998 (RCMA) are met, a valid customary marriage exists. A subjective intention to conclude a civil marriage in the future does not negate the existence of a customary marriage.

Furthermore, in VVC v JRM and Others, the Constitutional Court confirmed that antenuptial contracts entered into after the conclusion of ilobolo negotiations are unenforceable. This means that where ilobolo is paid without an ANC being in place, the parties will be deemed to be married in community of property by operation of law.

Important Note

An antenuptial contract must be executed before a notary public in order to be valid and enforceable.

Legal Disclaimer

The information contained in this article is provided for general informational purposes only and does not constitute legal advice. The application of the law varies depending on the specific facts and circumstances of each case. Readers are advised to seek independent legal advice before taking any action based on the contents of this article. No attorney-client relationship is created by reading or relying on this publication.

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