Registering customary marriages protects families
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.