Before 1994, customary marriages were hardly recognised by law in South Africa.
A customary marriage is defined as one concluded in accordance with customary law, that is, customs traditionally observed among the indigenous African people of South Africa and which form part of the culture of those peoples. This is unlike a civil marriage, normally carried out by a licensed marriage officer, upon which the state will grant you legal recognition through a marriage certificate.
The lack of clearly defined laws had adverse effects on, particularly, women within the union. They did not enjoy equal rights as their spouses. For example, they could not own property, negotiate or end their marriages or have legal custody of their children.
"In a traditional marriage... you would be sitting there with your Xhosa traditional bride attire, considering yourself as married but you do not have a ring, and your name is not registered at Home Affairs," shared one woman in a national study by GroundUp on customary marriage.
"Your partner could marry someone else at Home Affairs and now when you want to claim your rights, it's hard to do that because your marriage was not registered and there is someone else on record," the woman further explained.
Complexities would also arise in cases where, for example, lobola was paid in half and the husband died. Was the wife legally entitled to the deceased's assets? Was their marriage, according to the eyes of the law and of extended family, a legally recognisable one?
These complexities and more are what The Recognition of Customary Marriages Act, which came into effect in 2000, tried to address. The act came with a set of legal requirements that must be fulfilled for a customary marriage to be deemed valid.
We've rounded up five of them:
- Both parties must be above the age of 18 and consent to getting married.
- The marriage must be negotiated, celebrated and entered into in accordance with customary law to be valid. And although lobola is not a necessary requirement for the marriage to be valid, it does, however, prove that the marriage was negotiated in accordance with custom.
- The couple is encouraged (although not compelled), to register the marriage with the Department of Home Affairs within three months of getting married. Although non-registration does not invalidate the marriage, a marriage certificate constitutes prima facie evidence that the marriage is legal and that it exists.
- Customary marriages can be monogamous or polygamous. In the case that the husband wants to take a second wife, he must enter into a written agreement, which states what should happen to the property and how it should be shared amongst his wives. He must then apply to the court to approve the written contract.
- The RCMA automatically sees all people in customary marriages as married in community of property, unless an ante-nuptial contract is signed. This means that both of you share assets and debt equally. And should you divorce, your assets will be divided equally between the two of you.
However, customary law still does not afford recognition to marriages concluded in terms of Hindu and Muslim rites. These unions remain invalid unless they are solemnized in terms of the Marriage Act 25 of 1961.
The Women's Legal Centre is now involved in a legal process, seeking to give Muslim marriages legal status.