INTRODUCTION
The Recognition of Customary Marriages Act, 120 of 1998, came into operation on 15 November2000, and gives full legal recognition to customary marriages for the first time in the history of South Africa.
Prior to the commencement of the Act, customary marriages, (better known as customary unions) did not enjoy the same status as civil marriages concluded in terms of the Marriage Act, 25 of 1961. Customary unions received partial recognition for purposes of certain legislation and common law, if they were registered under the Black Administration Act 38 of 1927. Partners in customary unions were treated as spouses for the purpose of workmen's compensation,1 income tax2 and maintenance.3
Customary unions, as codified in the Black Administration Act, were also institutions in which women suffered unequal status and rights, to men. The Black Administration Act treated all women, regardless of age, capacity and marital status as minors.4 Women were not allowed to own property, sue or be sued in court, or exercise the power of contract. Women could not negotiate or terminate their marriages, nor could they have legal custody of their children.
The unequal status of customary marriages reflected the general approach of the pre-democratic governments to customary law in South Africa. It was viewed as a system of aw that was 'inferior' to common law and legislation. Its acceptance as 'law' was based on a concept of 'repugnancy' defined by Western, Colonial and Christian values. For example, customary unions were not fully recognized because, 'potentially polygamous', they were 'against good morals.5
THE LEGAL RECOGNITION OF CUSTOMARY MARRIAGES
Which marriages are recognized?
According to section 1 of the Act 'customary marriage' is defined as a marriage concluded in accordance with customary law, while 'customary law' is defined as the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples.
From the above definitions it is clear that customary marriages concluded in terms of Hindu and Muslim rites are not affected Act, and remain invalid unless they were solemnized in terms of the Marriage Act, 25 of 1961 or the Civil Unions Act, 17 2006.
Customary marriages entered into before 15 November 2000
Section 2(1) of the Act recognizes customary marriages entered into before the commencement of the Act (15 November 2000), provided that such marriages were validly concluded in terms of customary law and existed at the commencement of the Act.
According to section 2(3) if a person was a spouse in more than one validly concluded customary marriage as at date of the commencement of the Act, all the marriages are recognized as marriages. Polygamous marriages are thus given legal recognition.
Customary marriages entered into after 15 November 2000
Section 2(2) recognizes customary marriages entered into after the commencement of the Act (15 November 2000), provided the marriage complies with the requirements of the Act. This also includes polygamous marriages entered in terms of the Act [section 2(4)].
The general requirements for a valid customary marriage entered into after the commencement of the Act are as follows:6
- The prospective spouses must both be above the age of 18 years;
- They must both consent to be married to each other under customary law.
- The marriage must be negotiated and entered into or celebrated in accordance with customary law.
- If either of the prospective spouses is a minor, both his or her parents, or if he or she has no parents, his or her legal guardian, must consent to the marriage. If there is no legal guardian, the Act provides for substitute consent. 7
- The parties must not be prohibited from marriage because of relationship by blood or affinity as determined by customary law.
- In addition to the above requirements, a husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of the Act, must comply with a further requirement set out in section 7(6) of the Act, namely an application to the Court to approve a written contract which will regulate the future matrimonial property system of his marriages.
Subsequent civil marriages
A man and a woman between whom a customary marriage subsists may marry each other in terms of the Marriage Act of 1961, if neither of them is a spouse in a subsisting customary marriage with any other person. 8
A spouse in a customary marriage may, however, not marry another person in terms of civil law during the subsistence of such customary marriage. 9
REGISTRATION OF CUSTOMARY MARRIAGES
Duty to register
Registration provides certainty, and consequently section 4 of the Act provides that all customary marriages must be registered.
Customary marriages entered into before the commencement of the Act, which are not already registered in terms of any other law, had to be registered within a period of 12 months after the commencement of the Act, or within such a period as the Minister may from time to time prescribe by notice in the Gazette. 10
Marriages entered into after the commencement of the Act must be registered within a period of three months after the conclusion of the marriage or within such period as the Minister may from time to time prescribe by notice in the Gazette.
Although registration of a customary marriage is peremptory in terms of the Act, section 4(9) provides that failure to register a customary marriage, does not affect the validity of that marriage.
Proof of existence of a customary marriage that has not been registered can pose a problem to the Master when an estate is reported and it is suggested that the Master is justified in insisting on proof of registration of the marriage for estate purposes.
Section 4(8) provides that "a certificate of registration of a customary marriage issued under this section or any other law providing for the registration of customary marriages constitutes prima fade proof of the existence of the customary marriage and of the particulars contained in the certificate."
Who may apply to register a marriage?
Section 4(2) specifically allows 'either spouse' to register a marriage on behalf of both spouses. This provision read with section 4(5)(b) makes it possible for a surviving spouse in a customary marriage, whose marriage is not registered at the time of death of the other spouse, to register the marriage after the death of the other spouse in order to satisfy the Master's requirement of proof of registration.
During the process of developing the law, the women's rights lobby argued strongly for a provision that would allow wives to register marriages without their husbands. The purpose was to ensure that spouses who are reluctant to register their marriage do not frustrate the other spouse or the purpose of the Act. Because a customary marriage is a process that occurs over time and may involve more than a ceremony, it is easy to challenge its existence. Women, in particular, have the most to lose if the customary marriage is not registered. Men have been able to challenge customary marriages in order to avoid maintaining former spouses or the wives dependent on the estates they have inherited as male heirs.
Essentially, the Act accepts that it is not always in the interests of both spouses to register their marriage. 11
The Act also allows 'interested parties to apply to register a customary marriage on behalf of the spouses. 12
An interested party may be a friend, a relative, a traditional leader or one of the people who participated in the marriage negotiations between the two families. He or she could also be one of the husband's other wives or the children of the marriage or of the husband from another marriage. Also relevant may be persons with an interest in communal land under the control of the husband, business partners and fellow trustees. It appears to be left within the discretion of the registering officer as to who constitutes an interested party. As long as the party seeking to register the marriage satisfies the registering office that he or she has 'a sufficient interest in the matter', they may apply. 13
Requirements to register a customary marriage
Section 4(2) of the Act provides that the applicants must furnish the registering officer with the prescribed information and any additional information which the registering officer may require in order to satisfy himself or herself as to the existence of the marriage.
The Minister of Justice, in consultation with the Minister of Home Affairs, is responsible for creating the registration form and for identifying the necessary information the spouse or couple must provide to the registering officer.
According to information obtained from the Pretoria Regional Office of the Department of Home Affairs the following information is required to register a customary marriage after one of the spouses is deceased:
- The family lobolo agreement, which contains the date of the marriage, the lobolo amount and any of the agreed information, duly signed by all the parties concerned.
- If the agreement and the marriage was concluded in the rural area, the written confirmation from the Tribal Chief or King from that area to the effect that the marriage took place in that area.
- The death certificate, or a certified copy thereof, in respect of the deceased spouse whose spouse is reported.
- One representative each of the bride and the groom's family must accompany the surviving spouse to the nearest office of the Department of Home Affairs. All the parties must produce their identity documents during the registration process.
- A fee of R10,00 is payable in respect of the application for registration of the customary marriage.
STATUS AND CAPACITY OF SPOUSES
In terms of section 6 of the Act, a wife in a customary marriage is placed on an equal footing with that of her husband as far as her status and capacity is concerned, subject, however, to the matrimonial property system governing the marriage. This means that she may now acquire assets and dispose of them, enter into contracts and litigate, on a basis of equality with her husband, in addition to any rights and powers that she might have at customary law.
- Compensation for Occupational Injuries and Diseases Act 130 of 1993, s 1.
- The Income Tax Act 58 of 1962, s 1.
- Maintenance Act 23 of 1962, s 1.
- The Black Administration Act, 38 of 1927, S 11 (3)(b).
- Justice College, Customary Marriages Bench Book, February 2004, par. 2.1.
- Section 3.
- Refer to sections 3(b), 4(a) & 4(c).
- Section 10(1).
- Section 3(2).
- The Minister of Home Affairs extended the period to November 2002, but despite the expiry period, Home Affairs has permitted registration to continue.
- Justice College, Customary Marriages Bench Book, February 2004, par. 4.5.
- Section 5(a).
- Justice College, Customary Marriages Bench Book, February 2004, par. 4.5.
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