IN South Africa, the definition of a customary marriage is one that is negotiated, celebrated or concluded according to any of the systems of indigenous African customary law which exist in South Africa. The Recognition of Customary Marriages Act came into effect on 15 November 2000.
WHAT QUALIFIES AS A CUSTOMARY MARRIAGE?
A customary marriage must be entered into in terms of tradition. This means that there must be no white wedding, only a traditional ceremony. What is essential is that lobola or magadi is exchanged between the two families. At times, there is confusion around paying lobola whether that alone signifies a customary marriage or not. According to Move! legal expert and family law specialist, Nthabiseng Monareng, just paying lobola is not enough. “Please note that the lobola payment alone does not result in a customary marriage. There must be lobola and the wife must be handed over as a wife. If the husband pays lobola and the parties move in together, this will result in cohabitation,” she says. This means all traditional processes must be followed; paying lobola and the bride’s family officially handing her over to the groom’s family.
Customary marriages allow for a person to take more than one partner into the marriage. But it’s important to note all these polygamous marriages need to be customary marriages. The law is very clear that you’re not allowed to be in a customary marriage and a civil marriage at the same time with different people. But as a couple, you can have both a customary and civil marriage, but this means none of you can enter into other customary marriages while you are married to each other under civil law. So, if your husband wants to take a second wife, the law states that he must draw an agreement or contract which will outline what will happen to the property, how it will be divided among the wives and then he must apply to the court to approve the written contract. The court has to make sure all the property interests of all the wives are protected.
COMMUNITY OF PROPERTY
According to the Department of Justice and Constitutional Development, a customary marriage is automatically considered to be in community of property. This means that the husband and wife have an equal share in the assets, money and property. It also means that they share all the debts. If the parties would like their marriage to be out of community of property, they will have to enter into an ante-nuptial contract before getting married. If you want to change after you are already married, you will have to apply to the High Court.
THE IMPORTANCE OF A MARRIAGE CERTIFICATE
One of the biggest and most common challenges with customary marriages is the marriage certificate. Civil marriages are automatically registered with the Department of Home Affairs and the couple is given a marriage certificate. “The biggest challenge is non-registering customary marriages. Although non-registration does not invalidate the marriage, in order to enforce your rights, file for divorce or be regarded as a surviving spouse, you need a marriage certificate. If you do not have a marriage certificate, your spouse can marry another person without your knowledge,” says Nthabiseng. Having a marriage certificate is key to solving many common disputes in customary marriages. At times, when a partner dies, the spouse finds themselves with the challenge of proving that they’re the customary wife. A marriage certificate is legal proof that you are indeed the deserving spouse.
REGISTERING CUSTOMARY MARRIAGES
The law currently stipulates that customary marriages must be registered at Home Affairs within three months of taking place. You can also register the marriage through a designated traditional leader in areas with no Home Affairs office. You will need the following when registering a customary marriage:
¦ Copies of your IDs and a lobola agreement letter if available.
¦ One witness from the bride’s family.
¦ One witness from the groom’s family or
¦ A representative of each of the families.