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October 28, 2016

Customary marriages: I think I’m married, but am I?


The Recognition of Customary Marriages Act, 120 of 1998, that came into operation on 15 November 2000, gives full legal recognition to customary marriages in South Africa. The following summarises the position:
  • The law recognises your customary marriage if:
 you and your spouse are both older than 18;
    • You have both agreed to be married under customary law;
    • You negotiated and celebrated your marriage following the rules set out in customary law. 
  • Even though the husband does not need to pay Lobola for the marriage to be recognised by the law, payment of Lobola helps to show that you followed the traditions of customary marriage (the customs and usages traditionally observed among the indigenous African peoples of South Africa and which forms part of the culture of those people);

  • If you are married under customary law, you should (but don’t have to) register your marriage with the Department of Home Affairs;
So what proof do you have that you are married under customary law if you haven't registered the marriage at the Department of home affairs? Do you have a written contract in place, formalising the agreement between the parties?
There have been several cases where parties had to go to court to ask for an order declaring that they had been married. For example, in the case of Motsoatsoa v Roro and Others the ‘wife’ asked for an order declaring that a customary marriage existed between her and her late ‘husband’. The court found that, in fact, no customary marriage was entered into between the applicant and the deceased.
In the matter of Southon v Moropane the applicant sought an order that she was married to the respondent. The court agreed and found:
Having considered all of the factual matrix, the testimony of the witnesses, the experts’ testimony, the academic writings, case law, practices in the community and the authorities, in my view the essentials of a customary marriage between the plaintiff and the defendant in terms of s 3(1) of the Recognition Act were fulfilled. Both parties consented to marry each other according to customary law, and their marriage was negotiated, celebrated and entered into in accordance with customary law.
Why should it be necessary to go to court, at huge expense and at great risk, to prove that you are married? If you haven’t registered the marriage at Home Affairs, do so. Alternatively, put together a Lobola agreement.
We believe that this will help thousands of people who have entered into a customary marriage but now do not have any proof. This would secure the future of their children in case anything happens to the breadwinner and will also prevent family conflict as the assets of the deceased would automatically be the assets of the surviving spouse and the children.
The agreement would record the intention of the parties about their traditional wedding. The document would be a simple contract which would reflect:

i)             The names of the parties ;
ii)            The date of the traditional marriage ;
iii)           The intention of the parties with regards to the joint estate in the event one passes away;
iv)          The parties intention regarding the children born or to be born in the traditional marriage ;
v)           Any other issues to be included.

If you would like our help in putting together an agreement, confirming that you are, indeed, married, and to formalise things, please email Roy Bregman for a quotation.


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