LEGAL POSITION OF CUSTOMARY MARRIAGES UNDER SOUTH AFRICAN LAW

The enactment of the Recognition of Customary Marriages Act 120 of 1998 (RCMA) has established the inclusion of customary marriages as a valid marriage under our South African legal framework. A customary marriage represents the practices of indigenous African people when negotiating, celebrating and concluding a union in accordance with customary law, such as the Lobola practices. The Act, which came into effect in November 2000, regulates the conclusion of customary marriages as well as the property regime of spouses in customary marriages, as governed by Customary Law. Section 2 of this Act recognises how a monogamous and polygamous customary marriage constitutes a valid marriage, as long as it complies with the requirements for validity stipulated under section 3, which will be highlighted below.

Customary marriages are formally recognised unions under the RCMA. In terms of section 3 (1) of the Act, the requirements for the validity of a customary marriage entered into after the Act came into effect require that:

(a) the prospective spouses-

(i) must both be above the age of 18 years; and

(ii) must both consent to be married to each other under customary law; and

(b) the marriage must be negotiated and entered into or celebrated in accordance with customary law.

The duty that arises, is by way of operation of law in terms of Section 4 of the RCMA, that the spouses must register the customary marriage with the department of Home Affairs, as a general rule. Flowing from this, the Act further stipulates that the customary marriage must be registered within 3 months of the wedding date.  However, such registration is not a strict requirement for a valid customary marriage. Therefore, by implication this means that, a customary marriage that has not been registered will not be deemed to be invalid.  Thus, non-registration does not affect the validity of the marriage.

The purpose of the registration is to serve as prima facie proof that a customary marriage was entered into by the spouses, by which end the registering officer must issue a certificate of registration upon satisfaction that all requirements for conclusion of the customary marriage have been complied with. Ultimately, a court may, upon application and after having investigated the matter, order the registration, cancellation of the registration, or rectification of the marriage.

In the event that the customary marriage is to be dissolved, the legal position regarding the dissolution of a customary marriage is stipulated under section 8 of the RCMA, which provides that it can only be dissolved by a court by way of decree of divorce on the particular grounds of the irretrievable breakdown of the marriage. This means that the state of the marriage relationship between the spouses has reached a point of disintegration that there is no longer any prospect to restore normality between them. Therefore, the court must be satisfied under such circumstances in order to grant a decree of divorce, as a matter of last resort.

The matrimonial property regime of a customary marriage is by default concluded in community of property, where the estate of the spouses will be deemed to be a joint estate. Bearing such fact in mind, the dissolution of the customary marriage is not without further legal consequences. Should a customary marriage be dissolved, it will have implications on the joint matrimonial estate of the spouses. Section 7 of the Act regulates the legal position for the consequences of the property regime between the spouses. The default position of a marriage in community of property between the spouses can only be excluded by way of an antenuptial contract which opts to regulate the matrimonial property system, provided that the parties not be partner to any other existing customary marriage, as a general rule.

The patrimonial consequences of a customary marriage depend on whether the marriage is monogamous or polygynous.  These consequences are regulated by the RCMA.  Section 7(2) of the Act provides that the property regime of a monogamous customary marriage is that of a marriage in community of property, and of profit and loss between the spouses, unless such consequences are specifically excluded by the spouses in an ante-nuptial contract which sets out to regulate the matrimonial property system of their marriage. A marriage concluded by a spouse who is not a partner in any other existing customary marriage is recognised as a monogamous marriage.

The effect of this provision is that the husband and wife will share all property, money and debts equally.  This position can only be altered by entering into an ante-nuptial contract.

Applicable Legal Principles

The Recognition of Customary Marriages Act 120 of 1998

  • Section 4 of the RCMA regulates the registration of Customary Marriages, and places a duty on spouses to ensure that their marriage is registered.

The Obligation of Maintenance in terms of Marriages

  • With regards to spousal maintenance, this is not an automatic entitlement in the event of divorce. Thus, the court has the discretion to award spousal maintenance.
  • The RCMA specifically regulates the position regarding customary marriages. The court therefore can apply the provisions of Section 7 of the Act, by granting an order for the payment of maintenance.  In granting of such order, the court is allowed to consider any provisions or arrangement in terms of the customs of a customary marriage, i.e. the delivery of lobolo to the woman’s father (this might undermine the woman’s position to claim maintenance).

Patrimonial Consequences at the Dissolution of the Customary Marriage

  • In general terms, the court has the necessary authority to make an order of divorce in terms of a customary marriage, in the same way that it may order the dissolution of a civil marriage. Thus, the court may consider the following:
  • The incorporation of a divorce settlement agreement;
  • Granting a post-divorce maintenance order for the benefit of a spouse
  • Redistribution of assets
  • Ordering the forfeiture of matrimonial benefits
  • Making an order of costs

Summary and Recommendation

In conclusion, the RCMA has ensured that the rights of people married under customary law are protected.  It strives to protect the rights of women while also protecting the sanctity of traditional practices.  Although customary law is clearly distinguished from civil marriages under our South African law, it is still afforded equal status as such marriages.  Therefore, even though the marriage has not been validly registered as prescribed by the RCMA, your customary marriage will still be legally recognised and thus, you will still be entitled to the legal protection that applies to such marriages concluded according to customary laws.

With regard to the registration of the marriage, the RCMA stipulates the fact that an unregistered customary marriage will not be deemed to be invalid, as long as the parties to the marriage have complied with the necessary requirements.

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