Must a customary marriage be registered to be valid?

 

The short answer is NO: Failure to register a customary marriage does not affect the validity of that marriage. 

The Recognition of Customary Marriages Act 120 of 1998 (the Act) sets out the requirements for a valid customary marriage concluded before or after 15 November 2000, when the act commenced.

The Act defines ‘Customary Law’ as ‘the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples’ and ‘Customary marriage’ as ‘a marriage concluded in accordance with customary law’. 

Requirements for validity 

Section 3(1) of the Act provides that ‘For a customary marriage entered into after the commencement of this Act to be valid –

(a) the prospective spouses –

(i) must both be above the age of 18 years; and

(ii) must both consent to be married to each other under customary law; and

(b) the marriage must be negotiated and entered into or celebrated in accordance with customary law’. 

Registration of a customary marriage

 

·         Section 4(1) of the Act provides that “The spouses of a customary marriage have a duty to ensure that their marriage is registered” and goes on to set out what information either spouse may give to the registering officer at Home Affairs and that the parties must cause the marriage to be registered within a period of three months after the conclusion of the marriage.

 

·         Parties married before 15 November 2000 have twelve months to register.

 

·         In both cases, if parties missed the deadline, it could be extended by such longer period as the minister may from time to time prescribe by notice in the Government Gazette. In terms of s4(3)(a) and (b) of the Act (GN1045 GG42622/8-8-2019) the minister recently extended the period for registration up to 30 June 2024 for both a customary marriage entered into on or after 15 November 2000.

 

·         If the registering officer is satisfied that the spouses concluded a valid customary marriage, he or she will register the marriage by recording the identity of the spouses, the date of the marriage, any lobolo agreed to and any other particulars prescribed. He then issues spouses a certificate of registration, bearing the prescribed particulars.

 

·         If for any reason a customary marriage is not registered, any person who satisfies a registering officer that he or she has a sufficient interest in the matter may apply to the registering officer in the prescribed manner to enquire into the existence of the marriage. If the registering officer is satisfied that a valid customary marriage exists or existed between the spouses, he or she must register the marriage and issue a certificate of registration. On the other hand, if a registering officer is not satisfied that a valid customary marriage was entered into by the spouses, he or she must refuse to register the marriage. Affected parties may then approach a court that may, depending on the facts of each case either order –

(a) the registration of any customary marriage; or

(b) the cancellation or rectification of any registration of a customary marriage effected by a registering officer. 

·         Failure to register a customary marriage does not affect the validity of that marriage.