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The Recognition of a Customary Marriage: A Marriage in Community of Property

1. The Requirements for a valid Customary Marriage

*Section 3 of the Recognition of Customary Marriages Act 120 of 1998

In order for a customary marriage entered into after the commencement of this Act to be valid the following requirements need to be adhered to:

  1. The prospective spouses must both be majors (18 years or older);
  2. Both parties must consent to be married to each other under customary law;
  3. The marriage must be negotiated and entered into or celebrated in accordance with customary law.

2. The Registration of a Customary Marriage

The onus is on the partners/customary spouses to register their marriage at Home Affairs. In the event that one of the spouses pass away before registration has taken place, this does not result in the non-recognition of the customary marriage but rather that the surviving spouse is required to register the marriage at Home Affairs by lodging the following documents:

  1. A certified copy of the death certificate.
  2. The Lobola letter – this serves to confirm date of marriage.
  3. Supporting documents – i.e affidavits from family members confirming the cultural events that took place which are in line with the customs of the spouses and that they believe a marriage took place;

A registering officer must, if satisfied that the spouses concluded a valid customary marriage, register the marriage by recording the identity of the spouses, the date of the marriage, any lobolo agreed to and any other particulars prescribed.

The registering officer must issue to the spouses a certificate of registration, bearing the prescribed particulars.

A customary marriage must be registered within three months of the marriage, however, non registration of the customary marriage does not invalidate the marriage.

3. The Proprietary Consequences of a Customary Marriage

*Section 7(2) of the abovementioned Act 120 of 1998

  1. A customary marriage entered into after the commencement of this Act in which a spouse is not a partner in any other existing customary marriage, is a marriage in community of property and of profit and loss between the spouses.
  2. Unless such consequences are specifically excluded by the spouses in an antenuptial contract which regulates the matrimonial property system of their marriage.
  3. An Antenuptial Contract may be entered into by the prospective spouses prior to the conclusion of the marriage.
  4. The Antenuptial Contract must be entered into before the lobola letter is sent out as this initiates proceedings which lead to the conclusion of a customary marriage as well as the fact that the date on the lobola letter is the date that the registration officer uses as the date of marriage.

It is prudent to note, therefore, that persons married according to Customary Law are in most instances married In Community of Property. That in order to change this status, parties must enter into a marriage contract prior to initiating the customs that inevitably lead to a marriage.

Legacy Yezibaya (Pty) Ltd

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