Ensuring that your customary marriage is legally valid is of the utmost importance and carries major consequences. In South Africa, customary marriages are governed by the Recognition of Customary Marriages Act 120 of 1998 which came into effect in 2000. This Act sets out what is meant by a customary marriage and the requirements that must be fulfilled for it to be deemed valid. Couples wishing to marry in terms of customary rites and those already in a customary marriage must meet the requirements of this law or face disappointment and even financial loss should it later be discovered that the marriage was never valid in the first place.
The Act defines a customary marriage as a marriage that is entered into in terms of the traditions and customs of the indigenous people of South Africa. In order for a marriage to be recognized as valid, 3 primary requirements must be met:
- The parties must both be over the age of 18 (or, where either of the parties is a minor, parental consent was obtained).
- The parties must both consent to the marriage.
- The marriage must be negotiated and entered into or celebrated in accordance with the customs and traditions of the parties.
While many indigenous groups in South Africa include the payment of lobolo as part of the traditional practices in concluding a marriage, it is not a requirement for the validity of a customary marriage. However, where lobolo is agreed upon and paid in part or in full, the families must put the agreement in writing for the purpose of registration of the marriage.
So you have concluded your celebrations, now what?
Section 4 of the Act requires that parties to a customary marriage register their marriage with the Department of Home Affairs within 3 months of marriage. Unfortunately, this is a part that many couples overlook. While failure to register the marriage does not render it invalid, it may cause problems later.
Say for example the couple decides to separate, they would have to apply to the court for a decree of divorce, however, because they did not register their marriage, they would first have to prove that a marriage existed in the first place by adducing evidence to that effect. The court would then have to declare the marriage a valid marriage before divorce proceedings can begin. It would not be enough for them to simply go their separate ways and remarry other people because those subsequent marriages would be invalid by reason of the parties still being married to each other. Another instance where failure to register a marriage and obtain a marriage certificate may cause problems would be in the unfortunate event of the death of one of the parties. Without a marriage certificate to prove the subsistence of a marriage, the surviving spouse would struggle to claim death, insurance, and other benefits without making an application to the court for the declaration of the existence of a valid marriage.
To avoid these and other situations, it is advisable to ensure that you register your customary marriage. To do this, both parties must present themselves at the nearest Home Affairs Office with the following:
- One witness representing each side of the family.
- The ID documents of the couple and their witnesses.
- The lobolo agreement if one was concluded.
Registering your customary marriage is free of charge, and while it may seem like an administrative burden upfront, it will no doubt save you both time and legal fees in the future.
By Grace Moyo