Register your marriage

2013-04-07 10:00

Disputes between surviving partners over a deceased partner’s estate are more common than you think, reports Maya Fisher-French

In a recent court case, two women got into a legal dispute about which of them was their late partner’s legitimate wife and which one had claim to his estate.

The applicant claimed that she was the legitimate wife of the deceased and wanted the department of home affairs to issue a marriage certificate posthumously.

She also requested that the marriage certificate issued by the department of home affairs to the other woman be declared invalid.

According to Mthokozisi Bhengu, a Fiduciary Institute of SA member and Gauteng provincial manager at Standard Executors & Trustees, a subsidiary of Standard Bank Group, this is not an isolated event.

“This is a typical scenario which we face most of the time in practice,” says Bhengu, who explains that often a person claims to have been married in terms of customary marriage to the deceased, but the marriage has not been registered with the department of home affairs.

Naturally, there is a dispute within the family as to whether the marriage was concluded or not and, invariably, there is another partner who claims to have been married to the deceased as well.

Bhengu says in this particular case the applicant claimed that she and the deceased entered into a customary marriage in August 1999. The deceased was killed in an accident in February 2008.

The applicant’s relationship with the family of the deceased deteriorated after his death and she learnt that the first respondent was claiming to be the wife of the deceased.

The court found that the applicant had proved that she had entered into a customary marriage with the deceased as the lobola negotiations and handover of the bride to the groom’s family had been observed. A declaratory order to that effect was issued and the department of home affairs was directed to register the marriage.

“Failure to have the marriage registered in terms of the act does not render it invalid, but poses challenges when a dispute arises,” says Bhengu.

The problem, however, was that the court was unable to grant the order cancelling the other woman’s marriage certificate, as there was no proof of fraud or corruption. Nevertheless, the court expressed suspicion about the validity of the existence of a marriage between the first respondent and the deceased.

“Since in terms of customary law and the act polygamy is legally allowed, this matter also demonstrated that the court would not easily annul a customary marriage already registered with the department of home affairs unless an act of fraud or corruption has been established to the satisfaction of the court,” says Bhengu, who adds that although failure to registermarriage does not necessarily render it invalid, registration is still one of the important pillars in determining whether the parties were married or not.

If you do get married under customary law, be rather safe than sorry and register the marriage in the prescribed times in order to minimise disputes later.

In terms of the Recognition of Customary Marriages Act 120 of 1998, a customary marriage is a marriage negotiated, celebrated or concluded according to any of the systems of indigenous African customary law that exist in South Africa (excluding marriages concluded in accordance with Hindu, Muslim or other religious rites).

Requirements for a marriage to be recognised as customary include (but are not limited to):

1. A customary marriage entered into before November 15 2000 must only be valid at customary law. However, if entered into from November 15 2000 onwards, it must comply with certain requirements, one of them being that the marriage must be negotiated, entered into or celebrated in accordance with customary law.

The act also directs such marriages to be registered according to two main categories:

1. Those entered into before the implementation of the act (November 15 2000) must be registered within 12 months of implementation of the act.

2. Those entered into after implementation of the act must be registered within three months of entering into the marriage.

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