What does it mean to be married under Customary Law?
There are three types of marriages that are recognised under South African law. These are:
civil marriages
customary marriages
civil unions
All of these marriages are registered and managed by the Department of Home Affairs.
Customary marriages are not handled by Marriage Officers but rather through traditional leaders. That said, they are recognised and regulated by the Constitution, customary law and the Recognition of Customary Marriages Act. The Recognition of Customary Marriages Act says that customary marriages are those that are “negotiated, celebrated or concluded according to any of the systems of indigenous African customary law which exist in South Africa”.
(Just so you’re aware, marriages concluded in terms of Muslim and Hindu customs, do not yet enjoy full protection under South African law in the absence of registering a civil marriage. Yes, we agree that this is far from ideal…)
REGISTERING A CUSTOMARY MARRIAGE
You must register your customary marriage within three months of the date of celebration or entering into the marriage. 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 need present themselves at either a Home Affairs office or a traditional leader in order to register a customary marriage:
the two spouses (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 you don’t register your customary marriage within this time, it will not invalidate the marriage, but it may become exceptionally difficult and expensive to prove that such marriage was validly concluded.
HAVING MORE THAN ONE CUSTOMARY MARRIAGE…
There is no restriction on the number of customary marriages that a man may enter into. However, no further customary marriage may be entered into unless an order of court regulating the future matrimonial property system of the husband’s marriages has been obtained.
If a male person is already in a customary marriage and wishes to enter into another customary marriage he has to, at his own cost, get a court order from a competent court which will regulate his future matrimonial property system.
HOW DO WE TERMINATE A CUSTOMARY MARRIAGE?
A customary marriage can only be terminated by an order of court due to an irretrievable breakdown of the marital relationship. This is the same as civil marriages or civil unions and means that private divorce settlements between the partners or their families will not be recognised.
Need a hand with any of this?