Reg­is­ter­ing cus­tom­ary mar­riages pro­tects fam­i­lies

Vuk'uzenzele - - Front Page - Dale Hes

In South Africa, cus­tom­ary mar­riages are an ac­cepted part of cul­tures and her­itage. How­ever, it is im­por­tant to note that these mar­riages need to be car­ried out fairly and le­gally, so that the rights of both the hus­band and wife are pro­tected. The Com­mis­sion for Gen­der Equal­ity’s le­gal direc­tor Marissa van Niek­erk pro­vides more de­tails on cus­tom­ary mar­riages and the im­por­tant fac­tors that peo­ple need to keep in mind.

Vuk: What are cus­tom­ary mar­riages?

MvN: Cus­tom­ary mar­riages are con­cluded in ac­cor­dance with the cus­toms and us­ages tra­di­tion­ally ob­served amongst South Africans. Vuk: What laws do these mar­riages have to com­ply with? MvN: Cus­tom­ary mar­riages are reg­u­lated by the Recog­ni­tion of Cus­tom­ary Mar­riages Act 120 of 1998. The fol­low­ing re­quire­ments have to be met: Both par­ties must con­sent to be mar­ried to each other. The spouses must both be above the age of 18, un­less the par­ents or le­gal guardians pro­vide con­sent when one or both par­ties are mi­nors.

The mar­riage must be reg­is­tered at the Depart­ment of Home Af­fairs within three months in or­der to pro­tect the in­ter­ests of the spouses, chil­dren and fam­ily mem­bers in the event of di­vorce or death. When reg­is­ter­ing the mar­riage, the spouses must present copies of their iden­tity doc­u­ments and a lobola agree­ment (if avail­able). At least one wit­ness from each fam­ily must also be present. A hus­band who wants to en­ter into a se­cond cus­tom­ary mar­riage with an­other woman must ap­ply to the court.

Peo­ple who are part of civil mar­riages can­not en­ter into a cus­tom­ary mar­riage.

The Recog­ni­tion of Cus­tom­ary Mar­riages Act states that both par­ties in the mar­riage have equal rights as hus­band and wife.

Vuk: What po­ten­tial prob­lems are posed by cus­tom­ary mar­riages?

MvN: Non-regis­tra­tion poses sig­nif­i­cant prob­lems. Regis­tra­tion pro­vides proof that the mar­riage ex­ists, so prov­ing that an un­reg­is­tered mar­riage ex­ists is dif­fi­cult. This will have an im­pact on the court’s abil­ity to pro­tect the rights of spouses in a di­vorce, in­her­i­tance of a de­ceased’s es­tate and the rights of chil­dren and fam­ily mem­bers. An­other po­ten­tial is­sue is that par­ties to a cus­tom­ary mar­riage of­ten con­fuse di­vorce and sep­a­ra­tion. It is im­por­tant to high­light that only a court with proper ju­ris­dic­tion can grant a di­vorce. Mar­ried cou­ples who sep­a­rate in­for­mally will not ben­e­fit from the le­gal rules reg­u­lat­ing the end­ing of a mar­riage.

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