CUSTOMARY MARRIAGES AND COMMUNITY OF PROPERTY

1 Jun 2017

Since the promulgation of the Recognition of Customary Marriages Act, 120 of 1998, the position has changed in that customary marriages are now recognised in our law. A marriage that is valid in terms of customary law and was in existence at the time of commencement of the Act, is for all purposes recognised as a marriage in terms of the Act. In the case of a person being in more than one customary marriage, all valid customary marriages entered into before the commencement of the Act, are for all purposes recognised as valid marriages in terms of the Act.

This also means that customary marriages will fall under community of property. For a customary marriage not to fall under community of property, an ante nuptial contract must be in place

What is a customary marriage?

It is a marriage entered into between a man and a woman, negotiated and celebrated according to the prevailing customary law in their community.
A customary marriage entered into before 15 November 2000 is recognized as a valid marriage, however, it will be regulated in terms of the specific traditions and customs applicable at the time the marriage was entered into.
A customary marriage entered into after 15 November 2000 is recognized as a valid marriage and will receive full legal protection irrespective of whether it is monogamous or polygamous.
A monogamous customary marriage will automatically be in community of property, unless it is stipulated otherwise in an ante nuptial contract.
In a polygamous marriage, the husband must apply to the High Court for permission to enter into such a marriage and provide the court with a written contract stating how the property in the marriages will be regulated (to protect the property interests of both the existing and prospective spouses).

Registering Customary Marriages

Customary marriages must be registered within three months of taking place. This can be done at any office of the Department of Home Affairs or through a designated traditional leader in areas where there are no Home Affairs offices.

The following people should present themselves at either a Home Affairs office or a traditional leader in order to register a customary marriage:

The two spouses (with copies of their valid identity books and a labola agreement, if available).
At least one witness from the bride’s family.
At least one witness from the groom’s family.
And/or the representative of each of the families.
In the event that the spouses were minors (or one was a minor) at the time of the customary marriage, the parents should also be present when the request to register the marriage is made.