Did you know that South Africans can choose between three types of marriages: a Civil Marriage, a Civil Union, or a Customary Marriage, or not getting married at all.?
Navigating customary traditions and the legal requirements of registering a customary marriage can feel overwhelming, but understanding these processes is crucial for ensuring your marriage is protected under South African law. With Solace’s legal plans, our legal advisors can take the pressure off of you.
Legal Framework and Requirements for Customary Marriages
Customary marriages are governed by the Recognition of Customary Marriages Act (RCMA), which ensures these unions are recognised and regulated within the legal framework.
Couples are required to register their marriage with the Department of Home Affairs within three months of the ceremony and provide proof that the unions adhered to customary law. According to the RCMA, failing to register a customary marriage does not invalidate it. However, registering your customary marriage provides legal proof, which is critical for matters such as inheritance, property rights, and divorce.
Requirements for a Valid Customary Marriage
To ensure the marriage is valid, the following conditions must be met:
- Both spouses must be 18 years or older.
- Both spouses must consent to enter the marriage.
- The marriage must be negotiated, entered into, or celebrated in accordance with customary law.
- A person cannot enter into a customary marriage and a civil marriage simultaneously with different partners.
Evidence of Customary Marriage
The following evidence can be presented to the registering officer to prove that the marriage took place and fulfilled the requirements of the RCMA:
- Minutes of Lobola negotiations (Lobola letter).
- Photos or videos of the couple in their wedding attire celebrating the union.
It is essential to be cautious with public celebrations, as these may be interpreted as evidence of a marriage under the RCMA, even if the bride has not been formally handed over to the groom’s family.
Matrimonial Property Regimes in Customary Marriages
Couples must decide on their matrimonial property regime before starting marriage negotiations.
Default Marriage Regime: In Community of Property
Unless stated otherwise through an antenuptial contract (ANC), customary marriages automatically default to in community of property, meaning all assets and liabilities are shared equally between the spouses. While this regime promotes fairness, it may expose liability to pay the one spouse’s debt.
Opting for Out of Community of Property
To establish a different marriage regime, such as out of community of property with or without accrual, couples must sign an ANC before the marriage ceremony. An ANC allows spouses to:
- Retain separate ownership of assets and liabilities.
- Decide whether to include the accrual system, which shares only the wealth accumulated during the marriage.
Antenuptial Contracts: Essential for Customary Marriages
Antenuptial contracts are crucial in defining financial and property relations in a customary marriage. Couples should carefully consider their options before finalising the marriage to avoid complications later.
Why an ANC Matters
- Protecting Assets: Ensures personal assets remain separate and safeguarded.
- Avoiding Joint Liability: Prevents spouses from being held responsible for each other’s debts.
- Legal Clarity: Clearly defining the financial relationship between spouses, which can prevent disputes in the event of divorce or death.
This contract must comply with the requirements of the Matrimonial Property Act and the Deeds Registries Act. With Solace, you may contact our legal advisors to ensure that your ANC complies with the requirements.
What Happens Without an ANC before the Marriage Ceremony?
If a customary marriage is concluded without an ANC, the marriage defaults to in community of property. Attempting to execute an ANC after the marriage is invalid, as the couple is already legally married.
Should the couple want to change their marital regime from in community of property to out of community of property after the wedding, or should one spouse die intestate, they will need to bring an application to the High Court which is costly and time consuming. If the marriage was not registered, it will need to be first registered, and only then can the Application be made for a declaratory order.
Recent Amendments and Women’s Rights in Customary Marriages
Case law, as well as recent Amendments to the Act gave wives to a customary marriage joint and equal proprietary rights within the marriage. These changes mean that, despite customary gender roles, women are protected within their marriages under the Constitution and are covered by the same rights as wives in a Civil marriage or Union.
Divorce and Customary Marriages
Dealing with divorce or ending a customary marriage follows the exact same procedure as any other kind of marriage in South Africa. The couple must petition for a decree of divorce, granted when the court is satisfied that the marriage has irretrievably broken down.
It is important to note that the RCMA does not require a customary marriage to be registered in order to be dissolved. As a result, all valid customary marriages, regardless of whether they are registered, can be dissolved by the court.
To understand more about getting divorced, while you are in a customary marriage, contact our legal advisors
With Solace you’re not alone
Planning the legalities of your marriage is essential. Trying to amend aspects of the marriage after the ceremony can be complex, time-consuming, and costly. Our legal advisors are here to help you understand your options and make informed decisions before the negotiations begin and you may watch our video
on Love& the law to find out more.
Let us guide you through the process to ensure your customary marriage is secure and legally compliant.
