This year’s Heritage Day weekend saw most social media platforms aflutter, boasting what seemed like a record number of wedding ceremonies taking place over the three-day period. Many of them appeared to be customary marriages or ‘traditional weddings’ as they are sometimes called.
Two former Miss South Africa queens, Liesl Laurie-Mthombeni and Dr Tamaryn Green, also had social media in a frenzy when they shared their respective special days as modern Zulu brides on their Instagram pages (pictures above and below).
Customary law is the written and (often) unwritten rules that have been developed from the customs and traditions observed among the various indigenous peoples of South Africa. It is under the auspices of customary law that customary marriages are concluded.
Customary marriages are regulated by the Recognition of Customary Marriages Act of 1998 which has recently been amended to address the proprietary consequences of customary marriages especially in the cases of polygamous marriages.
Section 2 of the Act recognises the following marriages within its provisions:
- A marriage which is a valid customary marriage and exists at the commencement of the Act (15 November 2000)
- A valid customary marriage concluded after the commencement of the Act which complies with the requirements of the Act
- All valid customary marriages concluded before or after the commencement of the Act where the person is a spouse in more than one customary marriage (polygamy)
Section 2 uses the word ‘valid’ often which begs the question: “what is a valid customary marriage?”
Section 3 of the Act sets out the following requirements for the conclusion of a valid customary marriage:
- The prospective spouses must be at least 18 years old or older,
- Both prospective spouses must consent to the marriage,
- The marriage must be negotiated and entered into or celebrated in accordance with customary law,
- Neither of the prospective spouses should be married in terms of the Marriage Act, and
- Where the husband is already married under customary law, his existing wife must consent to the proposed marriage. The existing wife may not be coerced into giving consent and consent must not be unreasonably withheld.
It seems simple enough. Except it isn’t.
The spouses in a customary marriage have a duty to register their marriage with the Department of Home Affairs. Not registering a customary marriage does not, however, render such marriage invalid. The importance of having a customary marriage registered even though it does not affect the validity of the marriage will be discussed momentarily.
Have you ever wondered what matrimonial property system applies to a customary marriage?
The short answer is that any marriage that is concluded in the Republic without an antenuptial contract will be, by default, in community of property. This includes customary marriages. A couple married in terms of customary law who also intend to conclude and register a civil marriage at a later stage must have an antenuptial contract in place before the customary marriage is negotiated. If an antenuptial contract is entered into after the customary marriage but before the civil marriage of the same couple; that antenuptial contract will be invalid.
It is important to consult with a notary public prior to commencement of negotiations to discuss the different matrimonial property systems available to you and their implications either at divorce or death.
Speaking of divorce: sometimes ‘forever’ isn’t that long.
Contrary to popular belief, a customary marriage can only be dissolved through a decree of divorce issued by a court. To dissolve a marriage, you must prove that the marriage exists. The not so minor issue of registration of a customary marriage rears its head here.
The absence of registration of a customary marriage does not mean the absence of the marriage altogether. To commence divorce proceedings, summons must be issued and served on the other party. Attached to the summons will be that particulars of claim and other annexures required by law, most importantly, the marriage certificate. The court is not likely to dispute the existence of the marriage if evidence thereof is provided but it will equally not issue summons to start divorce proceedings in the absence of the marriage certificate. What this means is that you may end up having to register the customary marriage solely for the purpose of getting divorced.
If it hasn’t already become apparent from reading this; concluding a customary marriage is not the walk in the park, or down the aisle, it is often perceived to be. Amid the ululations, celebrations, and the joy of two families becoming one lies a myriad of administrative boxes to check.
You can count on Molefe Dlepu Incorporated to guide you on your way to your big day. We have a team of professional and ethical attorneys, notaries, and conveyancers to answer your questions and act with your best interests at the top of our priorities.
Molefe Dlepu Incorporated are your 21st Century warriors of the law, committed to fighting for you, remembering for you, and growing with you.