The Ins and Outs of Customary Marriages

01 February 2022 ,  Marié Combrink 463

The understanding of Customary marriages being it to draft an Ante nuptial agreement or not, proceeding with a divorce or not or attending to a summons against parties married customary is a regular discussion in our office and I believe will increase in future.

I noticed regular debates on social media regarding the existence of a customary marriage.

Customary marriages were first recognized in South African law in 1998.  Although there is the Recognition of Customary Marriages Act 120 of 1998(RCMA) is there, the interpretation regarding the operation, application and subsistence of such a marriage causes numerous different opinions which results in disputes.

Customary marriages comes into effect after a series of events or principles were attended to but this differs from several different customs and traditions.  According to the RCMA the following requirements must be met:

  • The prospective spouses must be above the age of 18;
  • The consent of both spouses must be acquired to be married to each other under customary law; and
  • Negotiations must take place regarding the marriage or celebrated in accordance with customary law.

    Sounds straight forward, but no it is not.  The last point seems to be the requirement that causes problems due to different customs.  One question asked for instance is that if Lobola negotiations have been done if this is sufficient to conclude a valid customary marriage or whether payment of the lobola should be finalized.  We have encountered instances where the lobola is “paid off” over a period but the family regards the parties as married under customary law and in other instances the requirement according to tradition is that the lobola should be paid in full to have a valid marriage.

    The SCA interprets a valid customary marriage is considered when all 3 of the above requirements have been adhered to and only negotiations of lobola took place.  This results in a valid customary marriage even though certain customs and traditions were not observed such as for instance handing over of the bride.  The 3rd requirement therefor has an OR approach rather than and…. Requiring both negotiations and the celebrations to take place.

    The next discussion is regarding the registration and importance thereof within 3 months after the conclusion of the marriage.  We recommend the marriage be registered as indicated by Section 4(9) of the RCMA but clearly this is optional if we have a look at the wording that clearly states that in the instance where registration does not take place, this does not make the marriage according to customary law invalid.  In certain areas parties struggle to get access to the department of home affairs to see to the registration in the specified period.

    This unfortunately results in a lot of disputes in the event of death of one of the parties or deciding if formal divorce is required.  Despite provision made in the RCMA for a dissolution of a customary marriage, many couples married under customary law, informally separate and move on with their lives respectively without a formal divorce decree.  In some instances such couples are unaware that they are still considered to be validly married to each other which is only discovered when one party passed and the executor of such estate needs to attend to the communal estate.  In some instance these parties enter into a civil marriage after the separation which complicates matters more.

    We need to be informed and inform our clients and the public about this topic which can result in less disputes and headaches for the executor of such estate or heart ache of family members who thought that they will be provided for but now receives a surprise due to uncertainty regarding the correct procedures during separation.

    We advise that parties attend to the following:

  • Register their marriage as it serves as proper proof of the existence of the marriage
  • Rather conclude an ante nuptial agreement before the marriage is entered into if they wish to be married out of community of property and
  • In a situation where such customary marriage has broken down, obtain a divorce order through our courts to avoid any disputes

 

Related Expertise: Divorce and Maintenance
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