In practice practitioners are continuously being confronted with parties who have entered into a customary marriage, but have failed to have such marriage registered, as provided for in section 4 of the Recognition of Customary Marriages Act 120 of 1998. Cognizance, however, taken of the fact that section 4(9) clearly provides that the non-registration of the marriage does not affect the validity of the marriage.
Deeds office practice
It is practice in Deeds Registries to insist on the registration certificate or order of court to prove the validity of a customary marriage (see Registrars Conference Resolutions 31 of 2005 and 8 of 2006) To provide the registration certificate or order of court is in many instances impossible and this is causing undue hardship.
Masters office practice
In terms of Chief Master Directive 2 of 2015, the Masters office accepts a family meeting resolution in the form of MBU 16 to prove the validity of unregistered customary marriages. However, at this point in time, Registrars of Deeds still insist on the proof as per the conference Resolutions, which is in estate matters not always possible or financially viable.
It is submitted that where parties failed to register their customary marriage, proof must be accepted in the form of a joint affidavit by the parties setting out the facts, in the case where both the spouses are alive.
In the case of deceased estates the Registrars of Deed should accept the resolution of the family as alluded to above.
It is trusted that this matter will be addressed as a matter of urgency as it is an obstacle in service delivery.
I have always suggested that if the people who are/were married according to customary law were able to take the resolutions for review, the resolutions would, in my opinion, be found to be unconstitutional. While the Recognition of Customary Marriages Act prescribes that the marriages ought to be registered it also recognizes marriages that are not registered. The resolutions are in variance with the common practice of even recognizing partners as happens, for example, in the Pension Funds Act. One may also argue that the resolutions favour English or Roman Dutch law as they fail to take into account the role of traditional leaders (not that I support traditional leadership but the SA law does).
More often than not spouses in a customary marriage, even though a valid marriage exists are regarded as unmarried where the registration certificate or order of court cannot be produced. This is a travesty of justice. In the Administration of deceased estates this appears to be the norm.