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What is a customary marriage?

A customary marriage is a marriage entered into in accordance with the traditions, customs and culture of indigenous African people in South Africa, and is recognised by the Recognition of Certain Customary Marriages Act 120 of 1998 (hereinafter “the RMCA”) that came into operation on the 15th of November 2000.

Prior to RCMA coming into operation, customary marriages enjoyed limited recognition in law as it permits polygyny, but is not solemnised under the Marriage Act 25 of 1961 (hereinafter “the Marriage Act”). However, polygynous and monogamous marriages are now fully recognised under section 2 of the RCMA.

Requirements before a customary marriage is valid

There are certain requirements that must be met before a customary marriage will be deemed valid. These requirements are listed in section 3 of the RCMA. Both parties must be over the age of 18, consent to the marriage, and the marriage must be entered into and negotiated in terms of customary law. There are, however, additional requirements that must be met if either party to a customary marriage is under the age of 18.

Although the RCMA does not specifically set out the payment of lobola as a requirement for a valid customary marriage, in the case of Fanti v Boto and Others 2008 (5) SA 405 (C), it was confirmed that delivery of lobola will continue as it is an essential requirement under most systems of customary law. However, the court held that payment of lobola alone would not render a relationship a valid customary marriage in the absence of other essential requirements.

In the matters of Motsotsoa v Roro & Another [2011] ALL SA 324 (GSJ) and Rasello v Chali and Others (A69/2012) [2013] ZAFSHC 182 (23 October 2013) it was held that a customary marriage is only deemed complete once the bride has been handed over to the husband’s family, provided all the essential requirements mentioned above has been complied with. The handing over of the bride does not necessarily have to be a formal ceremony, but the mere cohabitation by the parties with the knowledge of the bride’s family constitutes a handing over.

Registration of a customary marriage

Section 4 of the RCMA places a duty on the parties who entered into a customary marriage to register same at the Department of Home Affairs within 3 (three) months after the conclusion of the marriage. A witness and a representative of each of the families must be present when the marriage is registered. A marriage certificate will then be issued to the parties as proof of the marriage. Failure to have a customary marriage registered does not render the marriage invalid, but it becomes problematic when one spouse passes away and the surviving spouse has to prove that the marriage existed.

Community of Property and Polygamous Marriages

A customary marriage is automatically in community of property as held by the Constitutional Court in the matter of Gumede v President of the Republic of South Africa and Others 2009 (3) BCLR 243 (CC). This is also subject to the fact that neither of the spouses are parties to any existing customary marriage. If the parties wish to be married out of community of property, an ante-nuptial contract, as with a civil marriage, will have to be entered into prior to the marriage. If the parties wish to change their marital regime after the marriage, they will have to bring an application to the High Court.

Under the RCMA, women have equal rights and status as men and a husband may have to obtain his wife’s consent before entering into a further customary marriage. The court in Shilubana and others v Nwamitwa 2009 (2) SA 66 (CC) held that consent by a wife for her husband to enter into a second customary marriage will depend on the tradition of the parties, the uniformity thereof by the community, as well as the need for flexibility and development of the tradition. Furthermore, a husband must, before entering into a further customary marriage obtain a court order to that effect.

It should however be noted that, if a party is married in terms of the Marriage Act, they will not be able to enter into a further customary marriage.

Divorce 

All valid customary marriages, whether registered or not, must be dissolved by a competent Court. A customary marriage is dissolved in terms of the Divorce Act No 24 of 1987 and such a marriage can however only be dissolved on the ground of irretrievable breakdown of the marriage.

Conclusion

In order to ensure customary marriages, comply with all the necessary requirements as set out in the Act, alternatively, if you require legal assistance with the dissolution of your customary marriage, Cavanagh & Richards Attorneys can assist in this regard.

Written by Michell Brown

April 2020

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