Summary of the Recognition of Customary Marriages Act, no. 120 of 1998

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Because customary marriages are common in South Africa, this Act makes provision for protection and recognition of spouses, and sets out the requirements that make a customary marriage valid. It establishes a system for the registration of such marriages and establishes the equal status and capacity of spouses. The Act also regulates the dissolution of customary marriages.

Contents

[edit] What Makes a Customary Marriage Valid?

For a customary marriage to be recognised, the marriage must be entered into or celebrated according to customary law. All customary law marriages that abide by the conditions of this Act will be recognised. If a person is a spouse in more than one marriage, all of the marriages entered into are considered to be valid. Persons who are married under customary law may not marry another person under the Marriage Act.

Persons who are married under customary law may not enter into marriage with another person under the Marriage Act, but spouses who are married only to each other and wish to marry under the Marriage Act are allowed to do so.

[edit] Who May Enter Into a Customary Marriage?

  • Both spouses must be over the age of 18 and must consent to be married under customary law.
  • Minors require consent as set out in the Marriage Act.

[edit] How Is the Marriage Registered?

The spouses of a customary marriage have a duty to register their marriage (within 3 months) by applying on the prescribed form. Any information required by the registering officer must be supplied. Either spouse may apply to have the marriage registered, and the consent of the other spouse is not required. The Act also allows for an interested third party to register the marriage (e.g. a son or parent).

Failure to register a customary marriage does not make it invalid.

If the marriage officer is satisfied that the marriage is a valid customary marriage, he or she must register the marriage by recording the identity of the spouses, the date of the marriage and any lobola agreed to. The spouse or spouses must be issued with a certificate of registration.

[edit] How Does the Act Affect the Legal Status of Customary Marriage?

According to Act, both spouses have equal status when it comes to deciding what to do with property. This means that husband and wife have an equal right to decide what to do with any money or land or assets. Marriages conducted before the commencement of the Act are subject to customary law dealing with property rights.

Marriages conducted after the commencement of the Act (i.e. after 1 November 2000) are automatically in community of property. This means that both spouses share equally all property, money and other assets. It also means they share all debts. This arrangement can be changed if both parties agree to the changes before the marriage, and enter into a written contract setting out the legal status of the marriage.

[edit] What Happens If One Spouse Marries Again?

If a husband wishes to enter into a further marriage, the Act makes provision for the protection of the first marriage. The husband must apply to the court to approve a written contract that regulates the futher matrimonial property system of his marriages.

The Court has to make sure that the legal interests of all wives are protected, and proceedings must be attended by all interesting parties.

If the application to enter into a second marriage is granted, the Court must give each spouse a certified copy of the contract.

[edit] How Are Customary Marriages Ended?

Customary marriages are ended by death or divorce, and divorce may only be granted by a Court of law. The Court will grant a divorce only if your marriage has broken down and it is satisfied that both the spouses cannot resolve the problems in the marriage.

The Mediation in Certain Divorce Matters Act, the Divorce Act and the Matrimonial Property Act apply to the dissolution of a customary marriage, and the division of property and any maintenance owing will be governed by these laws. In the case of a husband who has more than one spouse, the matrimonial contract will be taken into account.

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