Customary Marriages in South Africa
What is a Customary Marriage?
In South Africa a customary marriage is understood as being entered into in accordance with the traditions and customs of indigenous African customary law. The Recognition of customary marriages Act 120 of 1998 outlines certain requirements that must be complied with in order to conclude a valid customary marriage; while a civil marriage is exclusively a marriage concluded between 2 parties, and must be monogamous in order to be valid, customary marriages differ as polygamy is permissible. A customary marriage is understood to not only restrictive to two individuals, but also extends to their respective families.
Unlike civil marriages, customary unions occur gradually and are not concluded by single event such as a ceremonial signing of an official document. Thus, a marriage in terms of customary law is a familial matter which does not require the approval of an officiator in order to be regarded as valid.
Requirements for validity of customary marriages
In terms of section 3 (1), For a customary marriage entered into after- the commencement of this Act to be valid- (N) the prospective spouses- IS
- must both be above the age of I8 years; and
- must both consent to be married to each other under customary law: and
- the marriage must be negotiated and entered into or celebrated in accordance with customary law.
One will realise that the payment of lobola is not a requirement. But the law state that customary marriage must be Negotiated and entered into or celebrated in accordance with the customary law. One will remember the HHP customary court case where Judge Ratha Mokgoatlheng delivered his ruling following an urgent application by Lerato Sengadi to stop the funeral planned and to be recognized as the customary wife.
In his judgement, the Honourable Judge said “The fact that lobola was fixed and agreed upon, that is what is decisive. It is tried in Customary Law that the payment or part payment of lobola is a ceremony symbolically joining respective spouses and families together.” The Judge further ruled that “legislation regarding customary marriages do not require the bride to be “handed over”. Most customs requires that the bride be handed over to the grooms family and if this custom was not done, there is no customary marriage.
In this case, clearly there was no ceremony or celebration of the customary marriage. In one case, the court was very clear that the celebration does not have to be a big ceremony.
Matrimonial system governing the marriage
The Recognition of Customary Marriages Act 120 of 1998 thus now provides for three possible matrimonial systems which could be applicable. Firstly, in community of property and of profit and loss; secondly, out of community of property with the accrual system and thirdly, out of community of property without the accrual system. In terms of application, any of these three matrimonial systems would be suitable to a marriage that is monogamous but only the last possibility would be suitable in the event of a polygamous marriage.
Equal status
Even though section 6 of the Act affords equal status, the proprietary implications are not altered with respect to customary marriages which have been concluded before the commencement of the Act. This indicates that the drafters of the RCMA had the opportunity to equalise the position before and after commencement and failed to do so. This is due to the fact that women are given equal status in terms of section 6, but section 7 excludes them from exercising their right in terms of section 6 as the marriage is regulated by traditional customary law.
This conflict was settled in Gumede v President of the Republic of South Africa wherein the court held that section 7(1) was discriminatory and stated that all monogamous customary marriages are marriages in community of property. It is clear that this position stands only in terms of monogamous marriages, thus the conflict between section 6 and polygamous marriages still remain. The RCMA also states that the polygamous marriages will be “governed by customary law” but it does not clarity and provide guidelines as to what exactly a customary law marital property system consists of.
Conclusion
The acknowledgement of our traditions and cultural practices through the Recognition of customary marriages Act 120 of 1998 and the protection it affords women is a great start but a lot still has to be done by our legislative drafters to fully bring to the fore and turn into true societal benefit the full intentions behind the Act.
Customary marriage must be registered with the Home Affairs, failure to do so does not invalidate the marriage. The only way out of a customary marriage is through a decree of divorce from the Court.