Three legislations regulate marriages in South Africa – The Marriages Act, The Recognition of Customary Marriages Act and the Civil Union Act. Having explored marriages in terms of the Marriages Act previously, this article will focus on customary marriages.
Our law defines a customary marriage as one that is “negotiated, celebrated or concluded according to any of the systems of indigenous African customary law which exist in South Africa.” Unfortunately, marriages concluded in accordance with Hindu, Muslim or other religious rites are not recognized unless registered in terms of the Marriages Act or Civil Union Act.
In addition to the bride and bridegroom having legal capacity and consenting to the marriage, the African customary marriage must be negotiated which means that the bride’s father (or in the event of him being deceased, a senior family member) must consent to the marriage and likewise lobola must be paid, or arrangements for it made, and the bride must be handed over.
Customary marriages allow men to have more than one wife but women are limited to marrying one husband. However, the first wife must consent to further marriages of her husband and a written contract regarding the patrimonial consequences of the marriages must be made an Order of Court.
A couple married in terms of a customary marriage may also marry each other in terms of a civil marriage but then monogamy must prevail.
Customary marriages must be registered within three months at the Department of Home Affairs. Although non-registration does not invalidate the marriage, in order to enforce ones rights, file for divorce or be regarded as a surviving spouse, a marriage certificate will be required. Also, as a husband can take more than one wife, in the absence of the customary marriage being registered, the husband may marry another person without his wife’s knowledge or consent.
