A customary marriage in South Africa is one that has been conducted in accordance with customary law.
According to the Recognition of Customary Marriages Act 120 of 1998 (Act), these types of marriages are valid.
The purpose of the Act is to uphold the legitimacy of traditional marriages and the obligations to govern, document, and dissolve marriages conducted according to customary ceremonies.
Additionally, it serves to verify that each spouse has an equivalent degree of capacity within the marriage, thus serving the Constitutional Right to equality.
According to customary law, a marriage that existed at the date the Act went into effect is recognized as being valid under the Act. This perspective is thus supported in cases when an individual is a spouse to multiple customary marriages that were conducted prior to the Act’s commencement.
- The Recognition of Customary marriages Act 120 of 1998 (“the Act”) recognizes customary marriages as lawful marriages.
- The Act stipulated specific requirements that were to be fulfilled after November 15, 2000.
- The following requirements must be met (which are inclusive of, but not limited to):
- Customary law must be followed during the negotiation, entering into, and celebration of the marriage. This implies that the parties’ traditions and customs must be followed while entering into marriage.
- The parties forming the marriage must be at least eighteen years old.
- For a marriage to be deemed lawful, both parties must give their consent.
- The marriage has to be lawful.
- Although it is not expressly required by the Act, the payment of lobolo is generally accepted as standard when concluding a customary marriage, as is the ‘handing over’ of the Bride.
- Parties to a customary marriage have an obligation to register their marriage at the Department of Home Affairs within three months of the marriage’s conclusion.
- A registration certificate will be given to the parties and the customary marriage will be registered if the officer in charge of registration is satisfied that a valid customary marriage occurred.
- This registration certificate is proof of the validity of the customary marriage and could help to prevent potential issues in the future.
Divorce
A divorce decree has the power to dissolve a customary marriage.
The court should grant a divorce decree on the grounds that the marriage is irretrievably broken down with no prospects of future reconciliation.
In accordance with the Divorce Act, a court may now dissolve a customary marriage and issue decrees pertaining to the following: maintenance, asset redistribution, asset division, and forfeiture of certain advantages.
These orders are now also obtainable with regard to marriages conducted prior to the Act’s commencement.
It is apparent that, notwithstanding the broad spectrum of officially recognized customs in South Africa, everyone’s rights as specified in our Constitution ought to be respected and protected.
These changes marked an important development in the recognition of the equality of men and women in civil and customary marriages.
The Act regulated the rights of every individual involved in the marriage throughout the marriage, a divorce, and allowed for the registration of customary marriages.
The dissolution of customary marriages, more so when there are 2 parties thereto, can be technical and more than difficult.
Should you require assistance, feel free to contact our office.
Written by:
Charlene Hefer
(candidate attorney)