Marriage and Matrimonial Property

 

 


Yes, customary law permits polygamous marriages for men. However, if a man in an existing customary marriage wishes to enter into another customary marriage, he must first obtain a court order regulating the future matrimonial property system of his marriages. This is to ensure the protection of all existing and future wives' proprietary rights
 

No. A person cannot be simultaneously married under customary law to one person and under civil law to another. If a couple is married under customary law, they can subsequently enter into a civil marriage with each other. However, a civil marriage legally mandates monogamy, meaning neither spouse can then enter into another customary marriage with a different person while that civil marriage subsists.

Ideally, both spouses should be present for registration. However, if one spouse refuses to cooperate, the other spouse can apply to register the marriage. Home Affairs may initially refuse, but legal action can be taken to compel registration if the validity of the marriage can be proven.

The RCMA requires customary marriages to be registered with the Department of Home Affairs within three months of their conclusion. However, failure to register the marriage does not invalidate it. While the marriage remains legally valid, registration provides crucial proof of its existence, which is invaluable in administrative and legal matters
 

A customary marriage can only be dissolved by a court decree of divorce, similar to a civil marriage. The ground for divorce is the irretrievable breakdown of the marriage. A simple separation does not legally terminate a customary marriage, regardless of whether it was registered or not.

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Customary Marriages

Customary Marriages in South Africa - Bridging Tradition and Law

South Africa's legal system embraces customary law, deeply rooted in cultural heritage. Customary marriages are vital to many communities, blending traditional practices with modern legal statutes. The Recognition of Customary Marriages Act (RCMA) of 1998, effective from November 2000, formalized these unions, balancing tradition with legal clarity.

Understanding Customary Marriage

Customary law is a living, evolving system defined by the RCMA as the customs observed among indigenous African populations. It governs how marriages are contracted and dissolved. A key element is lobolo, a bridal wealth transfer symbolizing the union of two families, not a mere transaction. This practice varies across communities (e.g., bogadi, bohali, ikhazi).

Legal Framework for Customary Marriages

The RCMA sets clear validity criteria:

  • Age and Consent Both parties must be over 18 and mutually consent.
  • Customary Negotiation Marriage must be negotiated and celebrated according to customary law.
  • Polygamy Men may have multiple wives; polyandry is not permitted.
  • Implicit Consent Consent can be implicit, shown through actions and acknowledgments. Even a mother's consent can suffice if the father is unavailable, reflecting adaptability.

The Importance of Registration

While registering a customary marriage with the Department of Home Affairs strengthens its legal recognition, failure to do so does not invalidate it. However, non-registration can create complexities, especially in disputes, often requiring expert legal opinions to navigate.

Implications of Not Registering

  • Inheritance and Property Rights Difficulty asserting rights without legal documentation.
  • Legal Recognition Potential issues with spousal support, child custody, and joint asset access.
  • Social Benefits Challenges in proving marital status for healthcare or government aid.

Navigating Unregistered Marriages

Couples should consider:

  • Seeking Legal Advice Essential for clarity and direction.
  • Documentary Evidence Gather photos, witness testimonies, or written agreements.
  • Community Support Endorsements from elders can bolster recognition.

Registering a customary marriage is a vital step that bridges tradition with modern legal requirements, simplifying processes and safeguarding legal rights.

Dissolution of Customary Marriages

Customary marriages are dissolved only by a court decree, typically due to irretrievable breakdown (RCMA Section 8(1)). Prima facie proof of the marriage's existence, ideally a marriage certificate, is crucial. Without it, proving the marriage can be difficult.
Unless a prenuptial agreement states otherwise, all customary marriages are presumed to be in community of property, reflecting communal ethos but complicating financial matters during divorce.

Customary vs. Civil Marriages - Key Differences

  • Multiple Spouses Customary law allows polygamy for men; civil law mandates monogamy.
  • Dissolution Both require a court order, but civil marriages also end automatically with a spouse's death.
  • Fault in Divorce Both use a no-fault system, though misconduct can influence asset forfeiture.

Proprietary Consequences for Women in Customary Marriages

Despite RCMA's protection, women in customary marriages often face significant challenges in divorce due to a lack of awareness of their rights regarding joint assets and liabilities.

Key issues include:

  • Separation vs. Legal Divorce A simple separation does not grant access to asset division; a court-ordered divorce is required. Registration is crucial to protect legal rights.
  • Right to an Equal Share Women are often unaware they are entitled to an equal share of the joint estate (assets and debts), even if the marriage is in community of property by default.
  • "Desertion" Allegations Wives who leave the marital home are sometimes incorrectly perceived as "deserting," potentially compromising their rights to marital property if a legal divorce isn't sought.
  • Lack of Legal Expertise Some legal practitioners and courts may not be fully updated on customary marriage law, leading to inadequate consideration of women's rights during divorce proceedings.

Beyond the Ceremony - The Urgent Need for Legal Protection in Customary Unions

Protecting women in customary marriages hinges on education about their legal rights. Knowledge is power. It is crucial to seek a lawyer updated on South African customary law for accurate and fair representation during divorce.

As South Africa moves towards a unified marriage statute, the goal is to respect diverse traditions while ensuring legal protections align with human rights. The proposed draft marriage bill aims to harmonize various marriage forms, reflecting inclusivity and equality.

The dynamic nature of customary marriages highlights their value to South African society and the need for a legal system that protects and respects this diversity.
It is important to register a customary marriage in South Africa to afford legal protection to spouses.

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