CUSTOMARY MARRIAGES

 A customary marriage refers to a marriage that is entered into in terms of

customary law. Customary law is defined as ‘the customs and usages traditionally
observed among indigenous African peoples of South Africa and which form part
of the culture of those people’.
 Customary marriages are regulated by the Recognition of Customary Marriages
Act (RCMA).
 RCMA became operational on 15 November 2000
 Requirements:
- Customary marriages entered into before the commencement of the
RCMA
• Customary marriages entered into in KwaZulu-Natal were regulated by
theKwaZulu Natal Act on the Code of Zulu Law 16 of 1985 and Natal Code.
These marriages
• In terms of these codes the bride had to publicly declare to the official
witness that that she is freely, and with her consent, entering into the
marriage.
• Outside of KwaZulu-Natal, there were no legislations regulating the
customary marriages.
• The RCMA gives customary marriages entered before the commencement
of the RCMA were given automatically given legal recognition

- Customary marriages After the commencement of the RCMA

• Customary marriages are legally recognised if they comply with the
following requirements:
- The parties must be 18 years and above. Minor children can enter into a
customary marriage subject to obtaining consent from their parent/legal
guardian. If consent cannot be obtained, section 25 of the Marriage Act
applies.
- Both prospective spouses must consent to enter into a customary
marriage.
- The marriage must be negotiated and entered into or celebrated in
accordance with customary law.
-
 Registration:
- Registration of marriages entered into before commencement of the RCMA
had to occur by 31 December 2010.
- Registration of marriages entered into after commencement of the RCMA
must be done within three months of entering into the marriage.
- The Minister of the Department of Home Affairs can, time to time, extend
the registration period as the Minister prescribes in the Government
Gazette.
- The registration period has been extended to a period until 30 June 2024.

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 - Non-registration of the customary marriage does not invalidate the
marriage.

 Patrimonial consequences of a customary marriage

- Monogamous customary marriages
• All customary marriages, regardless of when they were entered into, are
in community of property, profit and loss, unless an antenuptial contract
was signed and registered at the Deeds office, before the parties entered
into the customary marriage.
• Customary marriages entered into before the commencement of the RCMA
were subject to customary law. This was changed by the Constitutional
Court in the Gumede judgment. (See below).

- Polygynous customary marriages

• Polygynous customary marriage entered into before commencement of the
RCMA
- The patrimonial consequences of polygynous customary marriages are, in
the RCMA, regulated by section 7(1) which state that these marriages
continue to be regulated by customary law.
- The Constitutional Court, in the case of Ramuhovhi v President of the
Republic has declared section 7(1) of the RCMA unconstitutional but
suspended the declaration of invalidity for 24 months to give parliament an
opportunity to correct the defect.
- During the period of suspension, the following applied:
a. Wives and husbands will have joint equal ownership, management and
control over matrimonial property dependant on the nature of the
matrimonial property.
b. The wife of the house and her husband will have joint ownership,
management and control over the house property. The property must be
administered for the benefit of the particular house.
c. All wives and their husband will have joint equal ownership, management
and control over family property. The property must be administered for the
benefit of the family.
d. Each spouse retains exclusive rights to her or his personal property.

Note: Parliament has passed the Recognition of Customary Marriages

Amendment Act 1 of 2021 and it’s commencement date is 1 June 2021.

• Polygynous customary marriage entered into after commencement of the

RCMA.
- Section 7(6)- a husband, who is in an existing customary marriage, and
the said husband wants to enter into a customary marriage with another
wife must bring a court application for the court to approve a written contract
that will regulate his polygynous customary marriage.

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 - If the husband takes another wife without complying with section 7(6) the
subsequent marriage will be valid but shall be out of community of property.
The husband and first wife’s marriage shall continue being in community of
property. (MM v MN judgment).

 Alteration of the matrimonial property system

- Marriages entered into before the commencement of the RCMA
• Alteration of the matrimonial property system can be done with permission
of the high court.

 Termination of the marriage by divorce

- A customary marriage must be terminated by a court of law. Informal
termination, often done by families, do not legally terminate a customary
marriage.
- Consequences of a divorce:
• Redistribution of assets
• Pension interest
• The interest of the children of divorcing parents
• Maintenance
• Joinder

 Termination of the marriage by death

- The RCMA is silent on termination of a customary marriage by death

 Co-existence of a customary marriage and a civil marriage or civil union

- A party in an existing civil marriage or civil union cannot enter into a
customary marriage, until they have terminated their civil marriage or civil
union- section 10(4) of the RCMA and section 8(2) of the Civil Union
Act.
- Spouses in an existing customary marriage can enter into a civil marriage
with each other- section 10(1) of the RCMA.
- A spouse who, is in a valid and existing customary marriage, enters into a
civil marriage or a civil union with a third party, will render the civil marriage
or civil union null and void.

COURT CASE JUDGEMENT

Mbungela v Mkabi The Supreme Court of Appeal held
that the ceremony of handing over
the bride is not necessarily a key
determinant of a valid customary
marriage.
MN V MN The Constitutional Court had to
decide if consent of a first is needed
before a husband can take another
wife.

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 The majority held that:
- a VaTsonga man must first obtain
the consent of his wife before taking
another wife.
-The constitutional rights to dignity
and equality dictate that the first
wife’s consent is required. If a further
customary marriage is entered into
without the consent of the first wife’s
knowledge or consent, her right to
equality with her husband is
completely undermined because
she is unable to consider or protect
her position regarding her personal
life, sexual and reproductive health
and the proprietary consequences of
the further marriage.

The Constitutional Court invalidated

section 7(1) of the RCMA which
stated that the proprietary
consequences of customary
marriages entered into before the
commencement of the RCMA
continue to be governed by
customary law.

The effect of section 7(1) meant that

Mr Gumede (the husband) continue
to solely own and had control of all
the family property and Mrs Gumede
(the wife) had no claim over them.

The Constitutional Court held that

depriving wives in monogamous
customary marriages of a claim to
family property because the
customary marriage was entered into
before the commencement of the
RCMA constitute unjustifiable unfair
discrimination on the ground of
gender.

The judgment is limited only to

monogamous customary marriages.
Ramuhovhi v President of the Declared section 7(1) of the RCMA
Republic unconstitutional.

The Constitutional Court held that the

proprietary consequences of

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 polygynous customary marriages
entered into before the
commencement of the RCMA should
be distributed as follows:

a. Wives and husbands will have

joint equal ownership,
management and control over
matrimonial property dependant
on the nature of the matrimonial
property.
b. The wife of the house and her
husband will have joint
ownership, management and
control over the house property.
The property must be
administered for the benefit of the
particular house.
c. All wives and their husband will
have joint equal ownership,
management and control over
family property. The property
must be administered for the
benefit of the family.
d. Each spouse retains exclusive
rights to her or his personal
property.

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