A legal expert explains why marriage disputes and legal costs are surging in South Africa.
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Court backlogs, incorrect frameworks, and later-in-life unions are behind a surge in legal disputes across South Africa’s three marriage systems. As a result, legal costs are also rising.
This is according to Ann-Suhet Marx, director and head of Litigation at Sandton-based law firm VDM Incorporated.
“Not understanding the legal framework at the time of marriage is now one of the biggest drivers of avoidable legal conflict, and the cost of resolving those disputes is rising every year. Because the law does not treat all marriages the same, the option you choose will determine the consequences you live with,” Marx explains.
According to the latest data available from Stats SA, the country is experiencing a long-term decline in formal marriages. Civil marriage registrations dropped 29.5% between 2013 and 2022.
South Africa recorded 171,000 civil marriages in 2011, compared with 130,806 in 2023. The average marriage rate now stands at 2.1 marriages for every 1,000 people. At the same time, the median age for first marriage is now 37 years for men and 33 years for women.
“The key takeaway from this data is that people are entering marriage with more assets, more debt and more complex financial lives. It’s a complexity that becomes expensive when a dispute arises,” Marx says.
South Africa recognises three distinct marriage frameworks, each with its own rules and financial implications:
Civil marriages fall under the Marriage Act of 1961 and are available to opposite-sex couples. Unless the couple signs an antenuptial contract, the marriage defaults to in community of property, creating a joint estate and shared liability.
Civil unions, introduced in 2006, offer same-sex and opposite-sex couples an alternative route with equal legal recognition. The same default property rules apply.
Customary marriages, governed by the Recognition of Customary Marriages Act of 1998, must be negotiated and celebrated according to living custom. Registration is required, but failure to register does not invalidate the marriage - it simply makes proof more difficult.
Customary marriages concluded after 1998 also default to in community of property, unless varied by a court-approved contract. Only customary marriages allow polygynous unions, and only with court oversight for subsequent marriages.
Marx explains that the rising costs of resolving marriage-related disputes are due to the annual increase in legal and court costs. “Inflation, higher professional fees, increased administrative charges, and longer court delays all contribute, so a matter that will cost a certain amount in 2025 will almost certainly cost more in 2026.
“South African courts are under strain, with family law cases competing for limited judicial time. Court delays for divorces in South Africa right now depend heavily on whether the matter is contested or uncontested. If both spouses agree on the division of assets, maintenance, and child arrangements, the court can finalise the matter in a few weeks or months. If, however, a case is contested, it can take a year or more to conclude.”
According to Marx, more couples are entering mixed-system marriages, both customary and civil, and more customary marriages remain unregistered, especially those predating 2008.
Families are increasingly blended across households, provinces, and cultural systems, while later-in-life marriages bring business interests, property portfolios, and debt into the equation.
“These factors make disputes harder to resolve and increase the time - and therefore the costs involved,” she says. Court delays are also compounding the problem. Backlogs mean matters take longer to reach a hearing, and every additional month adds to legal fees, administrative costs, and financial uncertainty for families.
Marx urges couples to choose their property regime carefully. All three marriage types default to in community of property unless you take formal steps to change. She also advises couples to register the marriage promptly. Registration creates proof and prevents later disputes.
Civil union marriages require a registered marriage officer and two witnesses, while customary marriages require adherence to living custom. Marx also urges couples to consider future financial exposure. Business ownership, debt and significant assets all need to be considered. Seek legal advice early as a short consultation with an expert can prevent long-term financial and emotional fallout.
“It’s far easier and far more cost-effective to structure a marriage correctly than it is to fix it later,” she advises.
zelda.venter@inl.co.za