A customary marriage can be defined as a marriage that is negotiated, celebrated or concluded according to any of the systems of indigenous African customary law which exist in South Africa. This however does not include Hindu, Muslim or other religious rites. Only South African citizens can enter into a customary marriage. If a South African citizen enters in a customary marriage with a foreigner, it will not be classified as a customary marriage.
For a customary marriage to be recognised and registered, certain requirements must be met. Customary marriages concluded before 15 November 2000 are governed by customary law. Customary marriages concluded after 15 November 2000 onwards must comply with the following requirements:
The marriage must be negotiated, entered into or celebrated in accordance with customary law;
Both parties who wish to marry must be above the age of 18 years; and
Both parties who wish to marry must consent to the marriage.
If an under aged child wants to marry that child will have to obtain the consent of his/her parents or legal guardian in the case where there are no parents. If the child does not have parents or a legal guardian the child can approach a Commissioner of Child Welfare for consent. Should the parents, legal guardian or Commissioner of Child Welfare refuse consent, the child can approach the High Court for consent as the High Court is the upper guardian of all minor children is South Africa.
It is important to note that, if a person is already a party to a civil marriage, that person cannot enter into a customary marriage. There is no restriction in South African law on how many customary marriages a husband can enter into however no further customary marriage may be entered into unless an order of court regulating the future matrimonial property system of the marriages has been obtained.
Customary marriages must be registered within three months of the marriage taking place. 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 by presenting the following:
Both parties who entered into the customary marriage together 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.
In order for an under aged person/s to register a customary marriage, his/her parents will also have to be present when the request to register the marriage is made.
People are often unsure about the consequences of the failure to register a customary marriage. By not registering a customary marriage does not necessarily affect the validity of such marriage. You will have to take a witness from both sides of the family to prove that a customary marriage was entered into.
The Recognition of Customary Marriages Act, 1998 declares that a wife in a customary marriage has equal legal status and capacity as her husband, including the ability to buy, own and sell property and the ability to enter into contracts. Previously, under customary law a wife had been regarded as perpetually a minor under the control of her husband.
If it appears that you do need assistance, feel free to contact our legal specialist who will be able to advise as to the best way forward in your matter.