The Recognition of Customary Marriages Act (“RCMA”) became law on 15 November 2000. If you were in an existing customary marriage before this date, your marriage is still recognised under the new law, as the RCMA has retrospective effect.
As a result, the RCMA regulates all customary marriages entered into before and after the Act, and also sets out the requirements which must be met in order for a customary marriage to be recognised.
A customary marriage is recognised as valid if the parties to the marriage have complied with the following requirements:
both parties to the marriage must be above the age of 18 years;
both parties must consent to being married under customary law;
the marriage must be negotiated, celebrated and entered into in accordance with the parties’ relevant customs; and
lobola is not a necessary requirement for the validity of the customary marriage. However, if it is paid, it goes a step further to proving that the marriage was negotiated in accordance with custom.
Subsequent to the commencement of the RCMA, all customary marriages conducted before or after 15 November 2000 must be registered with the Department of Home Affairs. In a case where a party was married after the law was passed, they should register their marriage within three months after the date of the marriage.
It is important to note that since the commencement of the RCMA, if the customary marriage is monogamous – meaning there is only one wife – failure to register the marriage does not invalidate the marriage. However, failure to register any subsequent marriages will invalidate these marriages. Hence, non-registration of customary marriages when there is more than one wife will invalidate all marriages, except that of marriage to the first wife. Registration is therefore encouraged as it constitutes prima facie proof of the existence of a customary marriage.
Even though customary marriages should be registered within three months of the date of the marriage, parties who miss this date may still register their marriage by approaching the Department of Home Affairs.
On the date of registration of the marriage, the following people should present themselves at the Department of Home Affairs:
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.
The customary marriage will then be registered by completing Form BI-1699 and paying the required fees. An acknowledgement of receipt called Form BI-1700 will then be issued by the Department of Home Affairs.
Irrespective of registration or not, all customary marriages where there is one husband and one wife, whether entered into before or after the coming into operation of the RCMA, are deemed to be “in community of property” [Gumede v President of the Republic of South Africa 2009 (3) BCLR 243 (CC)].
“In community of property” means that the husband and wife will have an equal share in all the assets of the estate and also means that they will share all of the debts. Their capacities to contract will also be limited in accordance with the usual limitations which apply to “in community of property” civil marriages.
The parties would have to enter into an ante-nuptial contract prior to the customary marriage if they would like to be married “out of community of property”. The ante-nuptial contract will state what marital property regime the parties would like to be married in accordance with, namely “‘out of community of property”, either with, or without the application of the accrual system as applies in civil marriages.
Changing the matrimonial property regime
If parties who were married in accordance with customary law wish to change their marital regime after they are already married, they will have to apply to the High Court in terms of Section 21 of the Matrimonial Property Act 88 of 1984. This application is done by way of affidavit, incorporating a proposed post-nuptial contract.
In addition to the affidavit and post-nuptial contract, notice must also be given to all of the parties’ creditors as part of the application. This is to ensure that none of the creditors will be prejudiced by the new “out of community of property” regime, and if they do feel that they will be prejudiced, they will be able to object to the application.
It is recommended that all customary marriages, whether entered into before or after the Act, be registered at the Department of Home Affairs. This is especially important if the marriage results in two or more wives to the union, so as to ensure that the subsequent marriages are recognised in accordance with the Act.
It is also recommended that parties consider the financial implications of their union, and whether they wish to be “in community of property” or “out of community of property”.
The purpose of the Act is to ensure equal rights to those married in accordance with customary law. However, the responsibility of registering the marriage, and entering into an antenuptial contract, lies with the couple who are to marry.
Words: Megan Harrington-Johnson, Partner at Schindlers Attorneys