South Africa: The Effect Of The Draft Recognition Of Customary Marriages Amendment Bill, 2009 On The Recognition Of Customary Marriages Act 120 Of 1998

Last Updated: 1 February 2012

The Recognition of Customary Marriages Act 120 of 1998 ("The Recognition Act") came into force on 15 November 2000. Before the enactment of the Recognition Act, all customary marriages were governed by Customary Law and women who were party to customary marriages were not afforded the same protection and benefits to that of women who were party to civil marriages.

The main objective and purpose of the Act is to give recognition to all customary marriages therefore ensuring that all women married in accordance with customary law are given equal status and rights as women married in terms of the civil law. The Recognition Act sets out the requirements for a valid customary marriage, regulates the registration of the marriage and governs the dissolution of a customary marriage and the proprietary consequences of such marriages.

Currently there is a Draft the Recognition of Customary Marriages Amendment Bill, 2009 ("the Amendment Bill") that is currently before the Portfolio Committee. This Bill seeks to amend certain provisions of the Recognition Act to the detriment of widows and spouses.

DEFINITION OF CUSTOMARY MARRIAGE

In terms of the Act a customary marriage is a marriage concluded in terms of customary law. Both parties to the marriage must be over the age of 18 years. Both parties must consent to the marriage. The marriage must be negotiated entered into and celebrated in accordance with customary law (there must be an agreement between the two family groups and the spouses regarding the payment of lobolo and the handing over of the wife to her husband or to his family).A spouse in a customary marriage cannot enter into a civil law marriage with another person under the Marriage Act of 1961, during the subsistence of such a customary marriage.

REGISTRATION OF A CUSTOMARY MARRIAGE

A Registering Officer appointed by the Minister of Home Affairs can register a customary marriage or a person who has been designated to perform these functions by the Director-General. Either spouse can apply for the registration of the customary marriage at any Home Affairs Office. Two witnesses will need to be present at the registration of the marriage.

The Amendment Bill proposes to change this and will instead provide that both parties together must register the marriage. The problem is that if one spouse refuses to register the marriage there is no affordable remedy available to the other spouse compelling them to register the marriage. The other spouse would have to bring a court application to do this. Many women in customary marriages cannot always afford to do this.

If the parties were married before the commencement of the Act they must register the marriage within 12 months. If the parties were married after the commencement of the Act they must register the marriage within 3 months. This period was extended by notice in the Government Gazette to 31 December 2010. Couples who have failed to register their marriages by this date are now being informed by the Department of Home Affairs that they would need to bring a court application to register the marriage. This is costly and many women in these marriages do not have the resources to bring such applications.

Currently a Registry Officer can register a Customary Marriage if one of the spouses of the marriage is deceased. In practice many women do not register their customary marriages on time, because they are unaware of the legislation and the time periods prescribed for registering customary marriages. Many rural women are significantly affected by this provision of the Act, which prescribes time periods for registration of customary marriages, while educated women in the urban areas are mostly familiar with the legislation. However, some officials at the Department of Home Affairs refuse to assist a widow with the registration of a customary marriage although the Act makes provision for it.

The Amendment Bill provides that a Registering Officer will not be able to register a marriage after the death of a spouse. The inclusion of section 6B in the Bill which states that "No registering officer may register a customary marriage of which one spouse is deceased" adversely affects surviving widows when the marriage has not been registered. For example if a woman entered into customary marriage and her spouse dies before the marriage is registered she will have no proof that a valid customary marriage existed between her spouse and her, so should she be faced with eviction proceedings by her late spouse's family she will have difficulty proving that she was married, or that she is the joint owner of the marital home. In addition, many widows will have difficulty registering immovable property into their names without the customary marriage certificate which serves as prima facie proof of the existence of the marriage.

Section 6B provides no relief, whatsoever for the widow when family members of the deceased turn hostile and withdraw their co-operation regarding registration of the marriage. After the death of the spouse in a customary marriage it is not unusual for the parents of the deceased to lay claim to the estate. The parents feel that they are entitled to all the property, in the mistaken belief, that whatever contribution made by the deceased during his life to the marriage now reverts to them as parents. It is almost as if the marriage never existed and this results in hardship for the widow and children when the husband dies intestate.

Most women only become aware of the legislation after the death of their spouse, or on abandonment or when they are threatened with eviction from the marital home. Whilst, the law is clear that a failure to register a customary marriage does not affect the validity of the marriage, in itself, it does, however; affect the ability of the surviving spouse to administer the deceased's estate and to inherit from the deceased's estate because she cannot apply for a letter of authority from the Master's office without a certificate of registration. This applies to instances where the husband dies intestate.

When the husband dies intestate the certificates of registration serve as prima facie proof of the existence of the customary marriage. Although the time period for registering customary marriages has been extended some family members of the deceased refuse to co-operate with the widow or provide affidavits or lobolo agreements to verify the existence of the marriage. The effect of this is the non-registration of the marriage which ultimately results in women being denied the right to administer the estates of their late husbands and very often the late husbands' family members being appointed to administer the aforesaid estates, which results in customary law spouses being denied the benefits to which they are by law entitled to inherit.

PROPRIETARY CONSEQUENCES OF A CUSTOMARY MARRIAGE

The Recognition of Customary Marriages Act initially did not fully protect women that were married before 15 November 2000. Since the proprietary consequences of marriages concluded before 15 November 2000 were still governed by the customary law and so these marriages were not automatically in community of property. This was challenged in the Constitutional Court in the case of Gumede v The President of South Africa and Others 2009 (3) SA 152 (CC)

THE FACTS OF THE CASE

Mrs Gumede entered into a customary marriage with Mr Gumede in 1968. Mr Gumede did not enter into any other marriages. The Gumede's were married for forty years and had four children. During the marriage Mrs Gumede upon the instruction of her husband did not work and; therefore, did not have any means to contribute towards the purchase of the family homes. For a long period of time the Gumedes lived separately and in 2003 Mr Gumede instituted divorce proceedings.

But because the Gumedes were married before 15 November 2000 their marriage was governed by customary law which meant that Mrs Gumede had no claim over the matrimonial property. The court decided that the distinction provided for in the Act between marriages entered into before 2000 and marriages concluded after 2000 was invalid. Furthermore, the court declared the Customary Law codified in the Kwa-Zulu Code of Law and The Natal Code of Law to be invalid. As a result of this decision the government has had to make amendments to the current legislation to bring it within the ambit of the Constitution. The new Amendment Bill has not come into force and all customary marriages are currently regulated in terms of the Recognition Act and the Gumede Judgement.

If the marriage was concluded before 15 November 2000 the rights to property will be governed by customary law. If the marriage took place after 15 November 2000 and a spouse is not a partner in any other existing customary marriage the marriage is in community of property and of profit and loss between the spouses unless excluded by the spouses in an ante nuptial contract. After the Gumede judgement in 2008 all customary marriages are marriages in community of property with the exception of polygamous marriages. The legislature has incorporated this change to the law into the Amendment Bill.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions