Authored By: Elsie Mbalane
University of Fort Hare
Abstract
This article examines customary marriages in South Africa. Customary marriages are concluded in terms of the Customary Law and the Recognition of Customary Marriages Act 120 of 1998. Customary laws of a marriage are living laws and may be interpreted by the legislation and courts. Before the commencement of the Constitution, customary marriage practices were only recognised by the courts if they were not inconsistent with the common law principles (George Wara, Guided Transformation of Customary Marriage Practices in South Africa,11, 2024). Section 211 (3) stipulates that the courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law (Section 211 (3) of the Constitution of the Republic of South Africa,1996). This article explores the overview of customary marriages, requirements before and after the Recognition of Customary Marriages Act, registration of the marriage, property and inheritance rights, and challenges of unregistered customary marriages.
Introduction
A customary marriage is a marriage which is concluded not in terms of the common law and the Marriage Act 25 of 1961, but in terms of the customary law and the Recognition of Customary Marriages Act (Jacqueline Heaton, South African Family Law, 217, 4th ed. 2015). Customary marriages are regulated by law and recognised under the Recognition of Customary Marriages Act 120 of 1998 (Anastacia Willemse, Customary Marriages and their legal implications, 2024). This Act intends to make provision for the recognition of customary marriages, to specify the requirements for a valid customary marriage, and to regulate the registration of customary marriages (Recognition of Customary Marriages Act, 1998). Customary law refers to customs and usages traditionally observed among indigenous African people in South Africa, which form part of the culture of those people (Jacqueline Heaton, South African Family Law, 217, 4th ed. 2015). Customary law is made up of Living and Official customary law.
1 Overview of customary marriages in South Africa
In South Africa, parties enter a customary marriage when it is in accordance with the traditions and customs of the African indigenous people. Customary marriages were recognised only for limited purposes because they permitted polygyny and were not solemnised in terms of the Marriage Act (Jacqueline Heaton, South African Family Law, 217, 4th ed. 2015). Section 2 of the Act conferred full legal recognition to monogamous customary marriages if all requirements of a valid customary marriage have been complied with to be recognised as a marriage (Section 2 of the Recognition of Customary Marriages Act, 1998). A customary marriage occurs gradually and is not concluded by a single event, such as a ceremonial signing of an official document. Thus, a marriage in terms of customary law is a familial matter that does not require the approval of an officiator to be regarded as valid (Customary Marriages in South Africa: Understanding the Recognition of Customary Marriages Act of 1998, 2016).
2 Requirements before the Recognition of Customary Marriages Act came into operation
Marriages entered into before the Act came into operation preserve the old customs and consequences of a customary marriage. The marriage was valid if it complied with the customary law requirements for a valid marriage (Changes brought about by the recognition of the Customary Marriages Amendment Act, 2022). The first requirement is that the bride must publicly declare to the official witness that the marriage is taking place of her own free will and with her consent. The second requirement is that if either future spouse is a minor, his or her father or legal guardian must also consent to the marriage (Jacqueline Heaton, South African Family Law, 217, 4th ed. 2015). A customary marriage entered into before the commencement of the RCMA had to be registered at the Department of Home Affairs before 15 November 2002 (Changes brought about by the recognition of the Customary Marriages Amendment Act, 2022). In the case of MM V MN, the court stated that the non-registration of a customary marriage does not affect the validity of the marriage (MM v MN, 2010).
3 Requirements entered into after the Act
Section 3 of the Act provides requirements for the validity of a customary marriage. The first requirement is that the spouses must be above the age of 18 years. The second requirement is that the spouses must consent to marry each other under customary law. The last requirement is that the marriage must be negotiated and entered into or celebrated in accordance with customary law (Section 3 of the Recognition of Customary Marriages Act, 1998). This requirement includes traditional ceremonies, such as lobola negotiations, but the specific requirement depends on the culture of the parties involved. In the case of Maluleke v Minister of Home Affairs, the deceased and the second defendant agreed that they were husband and wife. This agreement, together with the acceptance of the second defendant as his wife and the deceased’s family, satisfied the Act’s requirement that the customary be entered into. The court held that the fact that the celebration of their marriage in the form of an imvume did not occur does not invalidate a customary marriage (Minister of Home Affairs v Maluleke, 2008).
4 Registration of the marriage
Section 4 of the Act provides that spouses must register their customary marriage to make their existence easier to prove. Marriages must be registered within a period of three months in existence (Section 4 of the Recognition of Customary Marriages Act, 1998). The registration of a customary marriage provides a clear record of the marriage, reducing the risk of disputes, particularly regarding property and inheritance (Anastacia Willemse, Customary Marriages and their legal implications, 2024). In the case of the Road Accident Fund v Mongalonkabinde, it was stated that a marriage certificate would serve as proof of a customary marriage (Road Accident Fund v Mongalonkabinde, 2002).
5 Property and Inheritance Rights
- 1 Property Rights
In a monogamous customary marriage, the matrimonial property regime is in community of property unless the parties concluded an ante-nuptial contract. This means all assets and liabilities are jointly owned, providing protection to both parties in cases of divorce or death (Anastacia Willemse, Customary Marriages and their legal implications, 2024). In relation to a polygamous marriage in terms of section 7(6) of the RCMA requires that a husband in a customary marriage who wishes to enter into another customary marriage with another woman must make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriages (Section 7(6) of the Recognition of Customary Marriages Act, 1998). This provision aims to balance the interests of all parties involved (Anastacia Willemse, Customary Marriages and their legal implications, 2024).
- 2 Inheritance Rights
The Intestate Succession Act 81 of 1987 provides for inheritance in cases where a spouse dies without a will (Intestate Succession Act, 1987). Under this Act, spouses in a customary marriage have the right to inherit from each other’s estates. In the case of Bhe v Magistrate Khayelitsha, the Court considered section 9 of the Constitution and ruled that customary law must align with constitutional principles to ensure equality between people (Bhe v Magistrate Khayelitsha, 2004).
6 Legal challenges of unregistered customary marriages
The registration of a customary marriage is important because it facilitates the process of obtaining maintenance, proving rights to a deceased spouse’s inheritance, claiming assets, and enabling a spouse to assert her property rights (Lebo Collins Manzini, Legal challenges of unregistered customary marriages, 2024). When a customary marriage is not registered, it faces legal challenges impacting its rights and responsibilities. This may lead to challenges regarding loss of support and interstate inheritance (Lebo Collins Manzini, Legal challenges of unregistered customary marriages, 2024).
Conclusion
Customary marriages play an important role in South African Family law, and henceforth it is important that parties who wish to conclude their marriage under customary law comply with all the requirements of a valid marriage and register their customary marriage to make it easier for property division and inheritance.
Bibliography
Books
Section 211 (3) of the Constitution of the Republic of South Africa,1996.
Jacqueline Heaton, South African Family Law, 217, 4th ed. 2015.
Case laws
MM v MN 2010.
Bhe v Magistrate Khayelitsha 2004.
Minister of Home Affairs v Maluleke 2008.
Road Accident Fund v Mongalonkabinde 2002.
Journals
George Wara, Guided Transformation of Customary Marriage Practices in South Africa,11, 2024.
Anastacia Willemse, Customary Marriages and their legal implications, 2024.
Customary Marriages in South Africa: Understanding the Recognition of Customary Marriages Act of 1998, 2016.
Changes brought about by the recognition of the Customary Marriages Amendment Act, 2022.
Lebo Collins Manzini, Legal challenges of unregistered customary marriages, 2024.
Legislation
Recognition of the Customary Marriages Act 120 of 1998.
Intestate Succession Act 81 of 1987.
