When Africans marry, they can choose to marry by African customary law (traditional customs) OR by the ordinary civil law of the land. An African customary marriage takes place without a civil marriage officer. The families agree on the lobola or bride price. The ceremony takes place after the man’s family has paid all or part of the lobola.

The Recognition of Customary Marriages Act 120 of 1998, which came into effect on 15 November 2000, gives full legal recognition to customary marriages. If you got married before the Act came into effect, your marriage will still have legal recognition and protection if it complies with the customary law and was still in existence after the implementation of the Act. If your spouse died or you got divorced before the Act came into force, your marriage is not protected by this Act.

DOES THE LAW DISTINGUISH BETWEEN CUSTOMARY MARRIAGES ENTERED INTO BEFORE AND AFTER THE IMPLEMENTATION OF THE ACT?

Yes, there are different legal implications. Women married before the implementation of the Act fall under the customary law prevailing at the date when the marriage took place. However, in the Gumede case [Gumede (Born Shange)] v President of the RSA and others [2008] JOL 22879 (CC) which challenged the failure of the legislature to make the provisions of the Recognition of Customary Marriages Act retrospective, the court ruled that this differentiation was unfairly discriminatory. The practical result was that all marriages entered into before the Act came into force which were still regarded as being out of community of property, were now regarded as being in community of property.

As a result of this case the law does not distinguish between monogamous customary marriages before and after the implementation of the Act with regard to being in community of property.

The Recognition of Customary Marriages Act states the following:

Equal status and capacity: The wife in a customary marriage is no longer regarded as a minor. She has equal status and capacity to her husband. This means she can buy and sell assets, enter into contracts and take a case to court.

Validity: Both partners to a customary marriage must consent to the marriage and they must be 18 years or older. If a person under the age of 18 wants to enter into a customary marriage, they must first get permission from the Minister of Home Affairs.

Registration: The marriage must be registered with a registration officer at the Department of Home Affairs. The main purpose of registering the marriage is to provide proof that a customary marriage exists, which will help the parties if any dispute arises about the validity of the marriage. Failure to register a customary marriage does not affect the validity of the marriage.

Property and assets: All marriages concluded after the Act and monogamous marriages concluded before the Act according to African custom ( as a result of the Gumede case)will automatically be in community of property unless the parties draw up an ante-nuptial contract. Polygamous unions concluded before the Act are governed by customary law. Partners in a customary marriage can apply to the High Court to change the property system of their marriage. If the husband wants to enter into another customary marriage, the husband, existing wife/wives, and the future wife must enter into a contract to develop a new property system and ask the High Court or Regional Magistrates Court (Family Court) to approve the contract. The court will try to look after the interests of all the parties by deciding what the assets are worth and making sure that the existing wife and children get a fair deal. All marriages formed after the Act will automatically be in community of property unless the parties draw up an ante-nuptial contract.

Inheritance: The Recognition of Customary Marriages Act does not change the law on inheritance but a new law that deals with this was passed in 2009 called the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009. This legislation does away with the rule of primogeniture (the rule that the oldest male relative inherits all) that was challenged in the case of Bhe and others v The Magistrate, Khayelitsha and others 2005(1) SA 580 (CC). In this case the Constitutional Court held that the customary law rule of primogeniture is unconstitutional and that estates of all black people who die without leaving a will should be dealt with as set out in the Intestate Succession Act.

Custody of children: The court can decide who will have custody of children born into a customary marriage and what maintenance should be paid. The decision will be based on what is best for the children. A customary union is still recognised for these cases:

• The partners can claim support money from each other if they are divorced
• A wife can claim inheritance rights if her husband dies
• A wife can claim benefits under a pension scheme if her husband dies
• A wife can claim compensation under the Compensation for Occupational Injuries and Diseases Act if her husband dies in an accident at work.

MAY A WOMAN WHO IS MARRIED BEFORE THE IMPLEMENTATION OF THE ACT, HAVE HER CUSTOMARY MARRIAGE GOVERNED BY THE PROVISION OF THE ACT?

Yes, the Act makes provision for these women to change the legal consequences of their marriage in order to create equal status and capacity for both the husband and the wife. The parties must apply to court stating good reasons for the change and show that no third person will be prejudiced.

DOES THE ACT MAKE PROVISION FOR POLYGAMOUS MARRIAGES?

The Act does allow a man to enter into multiple marriages. However, this has to be done under the provisions of the Act. The Act states that if a man wishes to enter into a polygamous marriage he has to apply to the court for permission. In his application he must set out the property systems for all of his wives. All interested parties must be represented in the application, particularly the existing and future wives. The court must consider the circumstances to ensure that the contract fairly divides the existing marital property. The court has the power to accept, add a condition or refuse to accept a contract. This provision is intended to protect all wives, children and family members.