RECOGNITION OF CUSTOMARY MARRIAGES IN SOUTH AFRICA
It may come as a surprise to know that before 15 November 2000 customary marriages were not seen as legal marriages in South Africa So while all the ululating, delicious traditional food and exquisite tribal dresses were cause for celebration, the bottom line, until 15 November 2000 anyway, was that the happy couple were not legally married after the ceremony.
On 15 November 2000 the position changed when the Recognition of Customary Marriages Act 120 of 1998 (“the Act)” came into effect.
The Act has retrospective effect, which means that all customary marriages (defined in the Act as “a marriage concluded in accordance with customary law”) concluded, even before the Act was promulgated, are valid and recognized in South Africa, provided the requirements set out in the Act are fulfilled.
It sounds simple enough, but because customary law varies from area to area and from tribe to tribe, it is very difficult to set down specific and set rules with regard to requirements for a valid customary marriage.
The requirements set out in the Act are that:
- Both spouses must be over the age of 18;
- Both must consent to be married to each other by customary law and
- The marriage must be negotiated and entered into or celebrated in accordance with customary law.
A minor (a person under the age of 18) needs the consent of both his/her parents or guardian to enter into a customary marriage. If the minor is an orphan and has no guardian, the High Court as upper guardian may give consent, or the minor must approach the Commissioner for Child Welfare for the district in which the minor resides for the required consent. Such consent would be granted if the customary marriage is considered by the relevant authority to be in the best interest of the minor child.
The Act further provides that a customary marriage entered into before the commencement of the Act must be registered within 12 months after commencement of the Act and if entered into after its commencement, within 3 months after the date of the marriage. Failure to register the customary marriage does not affect the validity of the marriage, but it can cause major issues when parties decide to get divorced as the marriage must first be proven by leading evidence that all requirements in terms of the specific requirements of such customary marriage were met by the spouses.
In most tribes men are free to marry more than once, a fact that had to be taken into account when legislation regarding customary marriages became a possibility in South Africa. If more than one mother-in-law is not enough for a man, he is obliged to apply to the High Court (or a Family Court) in the region in which he is domiciled, to approve a written contract (similar to an antenuptial contract) which will regulate the future matrimonial property system of all his marriages.
The Act requires the Court to terminate the matrimonial property system regulates his current marriage(s) in order to effect a fair division of the property forming part of his and his current wife or wives’ estates. Something that is very important in this regard is that any customary marriage entered into after the commencement of the Act and in which a spouse is not a partner in another customary marriage is regarded as in community of property, unless it is excluded in terms of an antenuptial contract. When effecting such a division the Court is required to take into account all relevant circumstances of the family groups should such an application by the husband be granted.
The Act further makes provision for any party who has an interest in such an application to be added as a party to the proceedings. This includes the prospective wife.
The Court has the power to grant the application and approve the written contract, to dismiss the application completely or to amend the written contract as it deems fit and according to the best interests of any party that would be affected.
The Act has brought meaningful clarity and understanding to the cultures and customs of different tribes forming part of the unique rainbow nation of South Africa. Although it is difficult to raise awareness of the provisions of the Act, especially in the remote areas of South Africa, thousands of people have registered their customary marriages according to the Act, thereby protecting not only themselves, but also their marriages.
Helani van der Westhuizen is an associate and notary at Natalie Lubbe & Associates Inc. She is a passionate family lawyer, especially when it comes to children’s rights during divorce. She is building a family law practice to be reckoned with.
Her contact details are 084 513 5234 or email firstname.lastname@example.org