The balance between customary and civil marriages in South Africa

1. Introduction 

Two sets of legislation control marriage in South Africa: the Recognition of Customary Marriages Act 120 of 1998 governs various kinds of marriages, while the Marriage Act 25of 1961 governs legal marriages. The South African Constitution safeguards freedom, humanrights, and cultural rights. It also explains how the two kinds of marriages should cooperate. Finding a balance between cultural norms and legal requirements can be challenging. Insocieties where family, identity, and social order are valued, this is especially true. In actuality, alot of partners use both. Because they adhere to customary rituals, their union is legitimatefroma cultural standpoint. They then apply for a civil marriage to ensure they are legally wed. However, individuals are still unaware of their connection, which leads to disagreements over issues like inheritance, property division, marital validity, and polygamy. Lawyers and membersof the community can learn about how South Africa strikes a balance between traditional andlegal weddings through academic studies, court decisions, and laws. 

2. The Laws and the Constitution 

2.1 The Constitution Permits Customary Law to Be Used According to the Constitution, customary law is a distinct and legitimate legal system, so long as it doesn’t conflict withit. Aslong as it does not conflict with the Constitution or any other legislation pertaining to customarylaw, courts are required by Section 211(3) to observe customary law when it applies. Thisconstitutional approval enables people to marry in a traditional manner, which is permittedunder the RCMA. 

2.2 The Matrimonial Bonds Recognition Act Marriages that were “concluded in accordancewith customary law” are recognised by the RCMA and are given the same legal treatment asformal marriages. Customary marriages were not always permitted in the past, which wasunjust to women and children. The purpose of the Act is to put things right. What is necessaryfor a customary marriage to be deemed lawful? How can I sign up? What becomes of my property? Dissolution and divorce? How about marriages between polygynous people? 

2.3 Laws pertaining to foreign marriage The Marriage Act 25 of 1961 outlines the legal requirements for marriage. Civil Union Law No. 17 of 2006 The guidelines outlined in theseActs must be adhered to by marriage officiants. Written documentation of their marriageandmutual consent is required. A civil wedding does not allow for multiple marriages, but a legal marriage does. 

3. The requirements that must be fulfilled for conventional weddings to be permitted 

3.1 Age and Permission to Do It As long as both parties are at least eighteen and consent, youcan get married the old-fashioned method. Courts have dismissed marriages in where there was no genuine agreement because ³ agreement is crucial. 

3.2 Common Law Guidelines for Conversation and Enjoyment Each racial group has its owncustoms, but some of the most significant ones are discussing the bola, reaching a consensusbetween the families, and delivering the bride (as required by law); The case transfer procedurewas crucial in the Mbungela v. Mkabi case. Even though some things were still missing, thecourt ruled that the marriage was lawful because the right procedures had been followed. 

3.3 Creating an account Natural marriages are required to be documented under Section4of the RCMA. Even if they are not registered, they are still legitimate. This makes it much moredifficult to locate evidence. According to what the judges have heard, families frequently struggle to prove their marriage during arguments. 

4. Legal requirements for getting married 

To get married in a civil ceremony, you need to sign the marriage record, receive writtenconsent, and appear before a marriage officer. The formality of official marriages reduces the likelihoodof a disagreement by making proof clear to observe. 

5. How traditional marriage is viewed in various nations 

5.1 Marriage as a crucial component of social and community life In Africa, people frommanyfamilies and groups can get married. Not only two persons are involved. Himonga andother marriage scholars claim that marriage “creates a network of social relations” that extendbeyond the married couple. 

5.2 Lobola as a Travel Destination Honour, praise, family harmony, and meeting newindividualsare all part of Lobola. A gift exchange to demonstrate your love and concern for one another, rather than a purchase of the bride. Lobola, according to him, “shows how rights and responsibilities are shared between families.” … 

6. How to successfully navigate both types of marriages 

6.1 Having two marriages Many people marry in a civil ceremony after following the correct procedures. The courts concluded in the Ngwenyama v. Mayelane decision that, providedcertain requirements are satisfied, a couple may have both a civil and a religious marriage. … 

6.2 Property Repercussions Many people lack a basic understanding of property. Acoupleinatypical monogamous marriage shares the same property unless they execute an antenuptial agreement (ANC), according to Part 7(2) of the RCMA. The rule remains the same in a legallysanctioned wedding. In Gumede v. President of the Republic of South Africa, the Constitutional Court ruled that traditional marriages should be granted the same rights and benefits as other marriages. 

6.3 Unmarried gay couples Since polygyny is common, it is acceptable. However, the spousemust request that the High Court approve a written agreement that governs the property, according to Section 7(6) of the RCMA. ¹ ” The failure to pursue these actions resultedinthedissolution of several subsequent marriages. According to tradition, the first wife may needtoconsent to the second marriage in order for it to be valid, the court stated in the Mayelanev. Ngwenyama case. ¹ ” There is a lot of pressure on formal law and custom. The Constitutionprotects customs, but they don’t necessarily align with the law. This is particularly true withregard to inheritance, respecting customs, and equal rights for men and women. By eliminatingthe inheritance law provision that males should get first, the case of Bhe v. Magistrate Khayelitsha stressed the principle of equality. This case made it evident how crucial it is tostrike a balance between common law and constitutional principles. 

7. Issues that may arise in legal and religious marriages 

7.1 Problems Registering Traditional weddings are not registered in some countries because: 

• They are either expensive or too far away. 
• They are afraid of all the paperwork 
• They are unaware of it When one spouse passes away or gets divorced, it can be exceedinglydifficult because the other spouse must substantiate their case. 

7.2 Misconceptions About Reality Many individuals think: 

There are three different kinds of weddings: traditional rituals, church weddings, and lobolas. Alegal marriage is equivalent to a church wedding. Due to these errors, many persons lack legal strength. The Effects of Polygyny on Humans Polygynous persons face challenges suchastransferring assets between residences, acknowledging new spouses, and dividing an estate. Courts struggle to strike a balance between upholding the law and honouring various traditions. 

7.4 Concerns About Inequality Between Men and Women In the past, men’s authority servedasthe foundation for established law. In contrast, equality is protected by both the Constitutionand the RCMA. In terms of property, divorce, inheritance, and guardianship, women nowenjoythe same rights as males. These defences gained strength as a result of the Gumede case. 

8. Combining the old and new regulations 

8.1 Educating the public and interacting with the community It’s critical to be informed. Local residents must understand how to get married, manage property, what their rights are inadivorce, and how the government upholds customary rights.

8.2 Speaking with Family and Friends Family members frequently argue because they don’t discuss lobola, rules, or customary needs. 

8.3 How to properly register and provide evidence You can receive pension benefits, haveclear legal protection, and manage inheritances more easily if you register your marriage. 

8.4 Including traditions in the civil procedure Couples can respect their traditions while still abiding by the law: There will be traditional rites, a blessing from the elders, and gift-giving. Both of these can coexist peacefully with civil registration. 

9. Conclusion 

Ultimately, South Africa has many diverse cultures, and its laws uphold equality and humanrights. The way it manages dual marriage demonstrates this. Both civil and traditional marriages can coexist peacefully if all parties are aware of and consider their options. Findingthe ideal balance between legal certainty and customary legitimacy is necessary to ensurethat marriages are acknowledged, respected, and safeguarded by both law and custom. 

Bibliography 

Legislation 

Constitution of the Republic of South Africa, 1996. 

Recognition of Customary Marriages Act 120 of 1998. 

Marriage Act 25 of 1961. 

Civil Union Act 17 of 2006. 

Cases 

Bhe v Magistrate Khayelitsha 2005 (1) SA 580 (CC). 

Gumede v President of the Republic of South Africa 2009 (3) SA 152 (CC). Mayelane v Ngwenyama 2013 (4) SA 415 (CC). 

Ngwenyama v Mayelane 2012 (10) BCLR 1071 (SCA).

Mbungela v Mkabi 2020 (1) SA 41 (SCA). 

Books 

Bennett TW, Customary Law in South Africa (Juta 2004). 

Himonga C, African Customary Law in South Africa (OUP 2015). Maithufi IP and Bekker JC, Introduction to Legal Pluralism in South Africa (LexisNexis 2014). 

Journal Articles 

Himonga C and Moore E, ‘Reconceptualising Customary Law: Gender Equality and Cultural Diversity’ (2015) 32 SAJHR 22. 

Maithufi IP, ‘The Registration of Customary Marriages’ (2001) 64 THRHR 517. Mwambene L, ‘Marriage Under African Customary Law in South Africa’ (2017) 60 J Afr L435.