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The Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998) hereinafter referred to as "the Act", came into operation on 15 November 2000.
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| Definition |
It is important to note that in terms of the definition of a customary marriage, a customary marriage is a marriage negotiated, celebrated or concluded according to any of the systems of indigenous African customary law which exist in South Africa and that this does not include marriages concluded in accordance with Hindu, Muslim or other religious rites.
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| Requirements |
For a customary marriage to be recognised as a valid marriage, a customary marriage entered into before 15 November 2000 must only be valid at customary law. However, if entered into from 15 November 2000 onwards it must comply with the following requirements:
- The marriage must be negotiated, entered into or celebrated in accordance with customary law.
- The prospective spouses must be above the age of 18 years.
- Both prospective spouses must consent to the marriage.
- The parents of a prospective spouse who is a minor must consent to the marriage. If he or she has no parents, then his or her legal guardian must consent. If the parents or legal guardian cannot consent, a Commissioner of Child Welfare can be approached for consent and where consent is refused by either of the parents, the legal guardian or the Commissioner of Child Welfare, only a Judge of the High Court may consider granting consent.
- If either of the prospective spouses is a spouse in a civil marriage, a customary marriage cannot be entered into during the subsistence of the civil marriage. A similar provision also applied to customary marriages entered into from 1 December 1988.
- Although there is no restriction on the number of customary marriages that a husband may enter into, no further customary marriage may be entered into unless an order of court regulating the future matrimonial property system of his marriages has been obtained.
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| Registration |
The aforesaid Act distinguishes between two main groups of customary marriages:
- Those entered into before implementation of the Act (15 November 2000)
Must be registered within 12 months from implementation of the Act.
- Those entered into after implementation
Must be registered within 3 months from entering into the marriage.
For purposes of registration the spouse(s) may approach any Home Affairs domestic office, or a designated traditional leader in areas where traditional leaders have been designated to receive applications for registration.
The spouses, at least one witness for each of the spouses’ families, and/or the representative of each of the families should report for purposes of registration. In the case where one or both of the spouses were a minor at the time of a customary marriage entered into after implementation of the Act (in other words from 15 November 2000), the parents should also be present.
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The Department of Home Affairs administers the registration of customary marriages, whereas matters relating to divorce, matrimonial property and succession in relation to such marriages fall within the ambit of the Department of Justice. |
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