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

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.