There is a lot of uncertainties and inconsistencies regarding customary marriages in South Africa. The law around customary marriages continue to be developed on a case by case basis. This is primarily because of the different customs and practices that exist amongst the African people of South Africa.
Customary marriages are concluded in terms of customary law and governed by the Recognition of Customary Marriages Act 120 of 1998 ("The Act").
According to the Act, a valid customary marriage is deemed to be concluded once the following requirements have been complied with:-
- Both parties are over the age of 18 years;
- Both parties have consented to the proposed marriage in accordance with customary law; and
- The marriage has been negotiated and entered into or celebrated in accordance with customary law.
Although lobola has not been listed as a requirement in terms of the Act, it is well known amongst African communities that lobola forms an integral part of a customary marriage.
Similar to a civil marriage, the marital regime of a customary marriage can be in or out of community of property. If parties to a marriage have not concluded an Antenuptial Contract before entering into the marriage, such marriage will be in community of property, irrespective of whether it is a customary marriage or a civil marriage. It therefore goes without saying that if parties to a customary marriage wish to be married out of community of property, an Antenuptial Contract should be concluded before the marriage is entered into.
A customary marriage must be registered with the Department of Home Affairs within a period of three months after conclusion. However, failure to register the marriage will not render it invalid. Registration is nonetheless encouraged as it serves as proof of the existence of the marriage.
Polygamous customary marriages form part of the culture and tradition of the African communities of South Africa. The Act recognises such marriages. If a man who is already a party to a customary marriage wishes to enter into another customary marriage with another woman, application to court should be made for an order to regulate the future matrimonial property system of his marriages.
According to case law, a further customary marriage that has been entered into without the necessary court order is still valid. The consequence of non-compliance with the requirement of obtaining a court order is that the later marriage will be out of community of property.
A customary marriage, as is the case with a civil marriage, may only be dissolved by a decree of divorce issued by a court on the ground that the marriage has broken down and there are no prospects of reconciliation.
Originally Published 22 April, 2020
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