Long before the arrival of Roman-Dutch law, African communities entered into marriages based on customs and traditions – codified in indigenous customary law. After Customary Marriages in South Africa were formally recognised in 1998, they now enjoy equal status to the so-called ‘western marriages’.
Many couples today still choose to do both though. The customary marriage and wedding is then meant to honour tradition while the ‘western-style’ civil marriage and wedding is recognised as a must do for every ‘modern’ couple.
What also draws couples to the civil marriage is one previous undesirable character of the then customary marriages in South Africa and in cultures across the continent. Under customary marriages, wives often had little to no protection from the law in the case of a spousal dispute with their husbands. The husband enjoyed control and sole discretion in the marriage.
Often the grieving widow would also lose all the property that she and her husband worked for at his death to his relatives as women under many African customs had no property rights. Thus, many ‘modernising’ couples adopted the civil marriage for the protection it offered while still getting married according to custom.
The establishment of the Recognition of Customary Marriages Act 120 of 1998 (RCMA) has somewhat made the situation better.
What is a Customary Marriage in South Africa?
Customary Marriages in South Africa are understood as marriages entered into in accordance with the traditions and customs of a particular tribe. There are several tribes in South Africa; the major ones are the Zulu, Xhosa, Bapedi (North Sotho), Ndebele, Basotho (South Sotho), Venda, Tsonga, Swazi and BaTswana.
Certain requirements must be complied with in order to conclude a valid customary marriage. Note that while a civil marriage is concluded between two parties, and must be monogamous in order to be valid, in customary marriages polygamy is permissible.
Customary marriages are also not concluded by just the two individuals, but involve the agreement and recognition from their respective families. Thus, unlike civil marriages, customary unions often occur gradually and are not concluded by single event like the ceremonial signing of an official document.
Whereas civil marriages will require the approval of a state officiator in order to be regarded as valid, customary marriages are valid as soon as the families agree.
Lobola and customary marriages
This brings us to how families will reach the approval of the customary marriage. While things might differ from one tribe to the next, the common theme among African customary marriages is that lobola (or the bride price) must be paid.
Lobola is paid by the groom with the help of his family to the family of his bride. Unlike the civil marriages, the groom cannot go to his bride’s family and negotiate the lobola by himself. He has to rely on intermediaries (often his uncles, brothers or close family friends) to go and engage the bride’s family (often represented by the bride’s uncles, brothers or close family friends) on his behalf.
The lobola negotiation team that he sends or accompanies can include his aunts and sisters – but they seldom play a role in the actual negotiations. It’s a men’s game and the women are usually there as witnesses to the agreements made.
Still, there have been situations where women have taken charge of lobola negotiations – especially where their husbands passed away or as a way to spite fathers, who left them to bring up their daughters alone. This is despite many traditions dictating that it is the father who receives the lobola – whether he was there or not… Some well-meaning fathers do attend the lobola negotiations and after receiving the lobola, give it to the mother, who fended the child.
Remember also that customary marriages are not concluded on a single sitting. Lobola is often negotiated and paid over several meetings. The last lobola payment can be made over several months or years depending on the amount charged by the bride’s family and affordability on the part of the groom and his family.
Even where the groom can afford to make the full bride price at the first sitting, there have been stories where the bride’s family would refuse to take the full payment at one go. It’s not tradition.
Customary marriages thus become a huge effort that often then involves the whole community. It is this same community that then recognise the marriage as valid.
Equal status under Customary Marriages
Section 6 of the RCMA provides for equality for both parties to a customary marriage. This was further improved by section 9, which provides for the application of the Age of Majority Act. This Act states that upon reaching 21 or entering into a civil or customary marriage, a woman becomes a major.
Clarity on the position of wives in customary marriages that involve polygamy is still required. This is because wives in a polygamous marriage traditionally have ranks – now if all of them are equal, the rank is gone. Again, if equality were to be afforded to all parties – then the women will also be allowed to multiple husbands whereas tradition only the husband that privilege.
Couples in this situation can talk to a lawyer.
All monogamous customary marriages are understood to be marriages in community of property. Clarity also needs to be sort from legal practitioner about the law concerning property in polygamous customary marriages.
Registration of Customary Marriages in South Africa
Under Section 4 of the RCMA, it is the duty of the couple to register their customary marriage within the specific time period. Still, failure to do so does not invalidate the marriage.
However, previous legal cases have shown it is nearly impossible to make claims for benefits or divorce if the marriage is not registered despite the absence of a link between registration and validity. A court once stated that a woman married under customary law inevitably voluntarily places herself at legal risk.
Customary marriages entered before 15 November 2000 are recognised as valid. However, if entered after 15 November 2000, it must comply with the following requirements:
- The marriage must be negotiated, entered into or celebrated following customary law.
- The prospective couple must be above the age of 18 years.
- Both parties must consent to the marriage.
- The parents of a prospective spouse, who is a minor must consent to the marriage. If they have no parents, then their legal guardian must consent
- There is no restriction on the number of customary marriages that a man may enter into, but no further customary marriage may be entered into unless an order of court regulating the future matrimonial property system of his marriages has been obtained.
Registering customary marriages
Customary marriages must be registered within 3 months of taking place. This can be done at any office of the Department of Home Affairs or through a designated traditional leader in areas where there are no Home Affairs offices.
The following people should present themselves at either a Home Affairs office or a traditional leader to register a customary marriage:
- The two parties (with copies of their valid identity books and a lobola agreement, if available).
- At least one witness from the bride’s family.
- At least one witness from the groom’s family.
- And/or the representative of each of the families.
If the spouses are minors (or one a minor) at the time of the customary marriage, the parents should also be present when the request to register the marriage is made.
Customary marriages are registered by completing BI-1699 and paying the required fees. An acknowledgement of receipt BI-1700 will then be issued by the Department of Home Affairs.
Registering more than one customary marriage
If a male person is already in a customary marriage and wishes to enter into another customary marriage, he must, at his own cost, get a court order from a competent court that will regulate his future matrimonial property system.
It’s also possible for a male person who’s already in a customary marriage to one wife to enter into a civil marriage. They should follow the normal procedure for civil marriages. Remember that neither spouses will be able to enter into customary marriages with anyone else while they’re married to each other under civil law.
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