Understanding Customary / Traditional Marriages

UNDERSTANDING CUSTOMARY / TRADITIONAL MARRIAGES


Nolwazi Khumalo

Marriage can be exciting for most, however not paying cognisance to the legal implications can lead to one’s frustration and financial detriment. In this article, I will discuss customary marriages and their legal implication.

Customary Marriages (also known as traditional marriages) are recognised under the Recognition of Customary Marriages Act.[1]

In terms of the Act, all marriages concluded must meet the following requirements[2]:

  1. Both parties to the marriage must above 18 years of age. If one of the parties is a minor, the parent or guardian of the minor party must consent to the marriage.
  2. Both parties must consent to be married to each other under the customary law.
  3. The marriage must be negotiated and entered into or celebrated in accordance with customary law.
  4. Both parties must not be prohibited to enter into marriage by virtue of blood relations or affinity.
  5. If one of the parties has already entered into a customary marriage, the parties must apply to court for approval of a written contract which will regulate the future matrimonial property system of the marriages.

Should all the above requirements be met, the marriage will be valid. The successful negotiations and payment of lobola are not necessarily considered as a requirement, however may be helpful to prove that the marriage was negotiated according to custom. A party may marry more than one spouse in terms of the Act provided that all the above requirements have been met for each of the marriages he wishes to conclude.

The duty is then on the spouses to register the marriage in terms of Section 4 of the Act. In the case where the marriage is not registered, it is still valid. Parties other than the spouses who have entered the marriage may enquire as to the existence of the marriage provided that the registering officer is satisfied that the party has sufficient interest in the matter and applies in the prescribed manner.[3]

When registering the marriage, the following persons must be present in person at either Home Affairs or a traditional leader:

  1. The two spouses;
  2. At least one witness from both families;
  3. And/or representatives of each of the families;
  4. The parents or guardians of the minor spouse (if applicable).

The marriage will then be in community of property, unless the contrary prevails by way of antenuptial contract. This means that both parties will have an equal and undivided share in the estate (the assets, debts and properties).

All parties to the customary marriage has an equal standing in law, subject to the matrimonial property system governing the marriage. This means that, unless the contrary prevails, they both have full status and capacity and may therefore acquire and dispose assets, be a party to a contract and may litigate.[4]

A man and woman that have concluded a customary marriage with each other may convert their marriage into a civil marriage under the Marriage Act 25 of 1961, if neither of them has any other customary marriage existing outside of their marriage to each other.[5]

Only a court may dissolve a customary marriage by way of a decree of divorce, taking into consideration Sections 8(2) –8(5).

[1] Act 120 of 1998.

[2] Section 3.

[3] Section 4(5)(a).

[4] Section 6.

[5] Section 10.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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