Understanding Marriage Recognition

South Africa's rich cultural diversity influences our legal system, particularly in recognising marriages. Customary law plays a significant role in recognising marriages according to indigenous African traditions and customs. Understanding these customs is vital for legal practitioners and individuals, as requirements for traditional weddings may vary, including practices like lobolo for example.

One of the critical factors to establish is "does the marriage exist"? It seems like it would be self-evident to know whether you are married or not but, unfortunately, this is not always the case. 

Recognition of Customary Marriages Act

The Recognition of Customary Marriages Act, Act 120 of 1998 (RCMA), governs the legitimacy of customary marriages, defining key terms like "customary law," "customary marriage," and "lobolo." It's crucial to understand these terms and the Act's requirements to navigate customary marriage legally.

According to the act:

  • "Customary law" means the customs and usages traditionally observed among the indigenous African people of South Africa and which form part of the culture of those people.
  • "Customary marriage" means a marriage concluded in accordance with customary law.
  • "Lobolo" means the property in cash or in kind, which a prospective husband or the head of his family undertakes to give to the head of the prospective wife's family in consideration of a customary marriage.

This also includes recognising various customary practices and the importance of lobolo, which varies by name and form across different cultures. For example, lobolo is not necessarily applicable in all customs. Although the same principle applies, the "trade name" differs between the customs. Lobolo can also be described as bogadi, bohali, xuma, lumalo, thaka, ikhazi, Magadi, emabheka, etc. 

Requirements for entering a valid customary marriage

The RCMA, which came into effect on November 15, 2000, set certain legal requirements for a valid customary marriage (specifically in Sections 2 and 3), stating that the prospective spouses:

  • must be above the age of 18 years; and 
  • must both consent to be married to each other under customary law: and 
  • the marriage must be negotiated and entered or celebrated in accordance with customary law. 

Written consent for a customary marriage is also not a requirement, consent can also be implied from the conduct of the parties.  It is also important to note that men are allowed to have more than one wife, but women are not allowed to have more than one husband.

Key Components:

Consent

The father's or guardian's consent is crucial in customary marriages, reflecting the traditional emphasis on family involvement, although this requirement is not expressly stated in the Act. It can however be read into section 3(1)(b) which states that: "The marriage has to be negotiated and entered into in accordance with customary law".

In the case of Mabena v Letsoalo where the father of the bride abandoned the family, the consent of the mother was held to be sufficient. It was also decided in the same case that the consent of the parents of the bridegroom was not necessary. 

The bride must be handed over to the bridegroom by her family or a designated family member.

Lobolo

The general rule is that payment of lobolo is an essential requirement in concluding a customary union. Payment is made to the bride's father or the head of the household. There are certain exceptions to this rule (if the marriage is scheduled to take place during a period of mourning for a deceased head of a tribe for example). 

In modern and urban circumstances, the Ikhazi or lobolo is not paid in cattle, but the monetary equivalent of the cattle.

Payment of damages

People who enter a marriage and/or customary relationship must also understand the different relevant terminologies. When two parties want to get married and the woman has a child from a previous relationship, the husband will be required to pay an amount known as damages. It is vital to understand the difference between paying lobolo and paying damages.

Termination of a customary marriage (after 20 November 2000):

The RCMA imposes a duty on spouses in a customary marriage to register the marriage within 3 months after the marriage (as proof of the marriage) at Home Affairs.

It is important to note that non-registration does not make the marriage invalid. There is also no penalty for non-registration. Meaning, if the parties did not register their marriage at the Department of Home Affairs, the marriage would not be automatically regarded as invalid. 

Once the marriage is deemed valid and in existence, it can only be dissolved by a Court through a decree of divorce on the grounds of an irretrievable breakdown of the marriage, the same as that of a civil marriage, as per section 8(1) of the Act. 

A further important point to note is that in terms of section 7 of the Act, all customary marriages are in community of property unless such consequences are specifically excluded in terms of an antenuptial contract.

If a man is married to his first wife, in community of property, he cannot marry a new wife in the same marriage regime. The second marriage will need to be out of community of property.

This has led to confusion in the South African legal system where there have been cases where the husband married a woman and passed away. Later, when the estate is being divided, a previous (potentially unknown) spouse appears, and the matter ends in Court. There have been cases where a Court has ordered that the first marriage was indeed valid and as a result the second marriage is void. This situation can cause a lot of anxiety and changes in the law could help prevent similar issues from happening.

What if the marriage was not registered?

Although it would be easier to prove the existence of a customary marriage if it is registered at the Department of Home Affairs, the failure to register the marriage will not invalidate its existence. Unfortunately, there have been cases where Judges requested parties to register their marriages before a decree of divorce could be granted. The RCMA, however, is clear that non-registration does not nullify a marriage.

How can I prove a customary marriage?

Recently, more judgments have been handed down dealing with the complexity of customary law. Proving the existence of a customary marriage can be challenging, often requiring expert testimony in Court. It is important to note that traditions and customs differ, and the Court needs to take the specific traditions and/or customs into consideration when assessing the existence or validity of a customary marriage. 

Conclusion

There's certainly a need for legal evolution to reduce confusion surrounding customary law, especially when faced with the question, "Am I married legally or not?" Expanding and clarifying statutory provisions could streamline the process, making it easier for individuals to understand their marital status under customary law. This approach should aim to reduce legal ambiguities and foster a more inclusive understanding of South Africa's diverse cultural heritage.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.