Registration and Dissolution of Customary Marriage

THE RECOGNITION OF CUSTOMARY MARRIAGES ACT 120 OF 1998 – hereinafter referred to as “the Act”, came into effect on 15 November 2000. Reference to customary marriages in this article will bear reference only to marriages entered into after the commencement of the Act.

Requirements for a valid customary marriage

Section 3 of the Act lays down the requirements for a valid customary marriage.

The prospective spouses:

  1. Must both be above the age of 18 years; and
  2. Must both consent to be married to each other in terms of customary law.
  3. The marriage must be negotiated and entered into / celebrated in accordance with customary law.

Important notes:

Spouses who are in a monogamous customary marriage may enter into a civil marriage in terms of the Marriage Act, (Act 25 of 1961), if neither of them is a spouse in a subsisting customary marriage with any other person. Spouses who have entered into a civil marriage may not enter into any other marriage.

Marital regime – the marital regime applicable to a customary marriage will be one of in community of property and of profit and loss, unless the marital consequences are expressly excluded in a prenuptial agreement.

Customary Marriage and the Prenuptial Agreement

A prenuptial agreement must be entered into between the spouses in the same way as a common law marriage. The prenuptial agreement must be signed before the date on which the customary marriage is solemnized and must be registered by your attorney or notary within three months of signature of the prenuptial agreement.

Failure to register a prenuptial agreement will have the effect that the marriage is one of in community of property and of profit and loss.

Should the spouses not enter into the said prenuptial agreement and the intended marriage is solemnized in community of property, the provisions of Chapter III and sections 18, 19, 20 and 24 of Chapter IV of the Matrimonial Property Act, 88 of 1984, apply to the customary marriage.

The said section states that the spouses may apply jointly to the court for leave to change their matrimonial property system and the court may, if

satisfied that:

(a) there are sound reasons for the proposed change,

(b) sufficient notice of the proposed change has been given to all the creditors of the

spouses, and

(c) no other person will be prejudiced by the proposed change,

order that such a matrimonial property system shall no longer apply to their marriage and authorize them to enter into a Post nuptial agreement, by which their future matrimonial property system is regulated on such conditions as the court may think fit.

Registration of a customary marriage

Spouses to a customary marriage have a duty to ensure that their customary marriage is registered, even though non-registration will not affect the validity thereof.

Either spouse may apply to an official of a branch of the Department of Home Affairs for the registration of the customary marriage. The application must be done in the prescribed manner (by completing the BI-1669 form). Information needed in the application will be the following:

  1. Identification of the spouses;
  2. Date of marriage;
  3. Particulars of the Lobola agreement and any other particulars, which may be required by the registering official.

The certificate of registration (marriage certificate) will be issued, bearing the prescribed information.

If, for any reason a customary marriage is not registered, any person who satisfies a registering official that he/she has an interest in the matter may apply in the prescribed form for the registration of the said customary marriage. If the registering officer is satisfied that a customary marriage existed between the spouses, then he / she will issue a registration certificate. If the registering officer is not satisfied that a customary marriage existed between the spouses, then he / she must refuse to register the marriage.

Conclusion:

It is highly advisable that parties entering into a customary marriage have a prenuptial agreement registered by an Attorney or Notary in the Deeds Office. It is further advisable that the parties to a customary marriage register the marriage at Home Affairs. Even though validity of a customary marriage is not affected by non-registration, a marriage certificate is the only proof available to third parties that a customary marriage does indeed exist, especially in matters relating to divorce and deceased estates.