What Are the Requirements for A Valid Customary Marriage?

It is said that Parties conclude a customary marriage when they get married in accordance with the traditions and customs of indigenous African law. 

Certain requirements (as explained below) must be complied with for these customary marriages to be valid and are the same in all ethnic groups in South Africa. 

This was confirmed in a field study by Himonga and Moore in their book, Reform of Customary Marriage, Divorce and Succession in South Africa (2015) 82-83. 

What is a Customary Marriage in South Africa? 

The Recognition of Customary Marriages Act (RCMA) regulates customary marriages. 

A ‘customary marriage’ means a marriage concluded in accordance with customary law. The term ‘customary law’ means the customs and usages traditionally observed among the indigenous African peoples of South Africa. Such traditional norms form part of the culture of those communities.

To be lawful – these are the general requirements for a Valid Customary Marriage entered into after the commencement of this act: 

• The Prospective Spouses must both be above the age of 18 years; and
  
• Must both consent to be married to each other under customary law; and
  
• The marriage must be negotiated and entered into or celebrated in accordance with customary law.
  
• If either of the prospective Spouses is a minor, both his/her parents, or if he/she has no parents, then his/her legal guardians, must consent to the marriage.
  
• If a Minor Child has entered into a Customary Marriage without the written permission of the Minister or the relevant Officer. The Minister or Officer may declare a marriage to be a valid Customary Marriage if they consider the marriage to be desirable and in the interest of the parties in question.

Also, if the marriage is, in accordance with this act, in every other respect.

• The prohibition of a Customary Marriage between persons on account of their relationship by blood or affinity is determined by customary law.
• Registration Of a Customary Marriage
• A Customary Marriage must be registered within three months of the marriage. If the registration does not take place, it will not automatically render a marriage null and void. It will still be a valid marriage. However, certain problems may arise if the marriage is not registered.

A Customary Marriage can be registered at the Department of Home Affairs or with a designated traditional leader.

Registration of a Customary Marriage takes place as follows: 

The two Spouses, together with a witness from the Bride’s family, plus a witness from the Groom’s family and/or a representative from each of the spouses’ families must attend the Home Affairs Office or appear before the Traditional Leader to register the Customary Marriage.

Parties to a Civil Marriage may not enter into a Customary Marriage with another person as such a marriage will be void. 

When Spouses who are married in terms of Customary Law convert their marriage into a Civil Marriage they will automatically be married in community of property.

However, they can sign an Antenuptial Contract to regulate their marriage regime post the civil marriage.

Can I register my customary marriage without my husband? 

The Recognition of Customary Marriages Act (RCMA) does not require both spouses to be present to register a customary marriage.

Yet, the Department of Home Affairs seems to require both Parties’ presence before they will register the customary marriage.

How to protect your assets when you decide to marry in terms of Customary Law? 

As stated, a Customary Marriage is by default In Community of Property, where there is only one estate for the couple.

Before the customary proceedings are finalised, you should consider which marital regime is best suited for you.

If it is to be married in terms of the accrual, or with the exclusion of the accrual, then you should sign an antenuptial agreement prior to the finalisation of the customary marriage.

How do you end a Customary Marriage? 

A Customary Marriage can only be dissolved by death or divorce. Therefore, if you and your spouse no longer want to be married, you must proceed with an action for divorce.

What happens if a customary marriage is not registered? 

If the registration does not take place, it will not automatically render a marriage null and void, it will still be a valid marriage.

If there is a dispute about the validity of the marriage, either party may approach the Court to declare the marriage either valid or invalid.

The main question that the Court must consider is if the Parties have complied with the customary rituals. If so, the customary marriage will be held to be valid.

Can I obtain a Divorce Decree if I am married in terms of Customary Laws, but I do not have a marriage Certificate? 

Generally, the divorce Courts require proof of the marriage, and this is done with a marriage certificate.

If you and your spouse are customarily married, and you have not registered your marriage with the Department of Home Affairs, you can still get divorced without a marriage certificate.

However, the Courts will likely require proof of the marriage, and this may be a lobola letter, or other evidence.

Is Lobola a requirement for a customary marriage? 

You do not need to pay lobola for the marriage to be valid. Payment of lobola however proves that the marriage was negotiated in terms of the custom. 

Lobolo Agreement

Lobolo can be defined as the practice of paying a bride price before marrying someone. It initially took the form of payment of cattle. 

It can also consist of part cattle and part money. 

However, in Matsoaso v Roro [2011] 2 All SA 324 (GSJ) par [18] the Court found that “…the mere fact that lobolo was handed over to the applicant’s family, significant as it is, is not conclusive proof of the existence of a valid customary marriage.” 

Thus, this means that Lobolo is seen as only one of the requested requirements, and not as the only one.

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