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The Recognition of Customary Marriages Act 120 of 1998 (the Act) brought about fundamental changes to the legal position of a customary marriage in South African law. The Act ensured that a customary marriage is – for all purposes of South African law – recognised as a valid marriage whether it is registered or not, considering the compliance of the requirement for validity thereof.

Before dealing with the main issue at hand, it is important to understand the meaning of key words.

Section 1 of 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’. ‘Customary marriage’ is defined as ‘a marriage concluded in accordance with customary law’.

The requirements for the validity of a customary marriage

Section 3(1) of the Act states the requirement for validity as follows:

‘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’.

The registration of customary marriage in terms of s 4 of the Act

‘(1) The spouses of a customary marriage have a duty to ensure that their marriage is registered.

(2) Either spouse may apply to the registering officer in the prescribed form for the registration of his or her customary marriage and must furnish the registering officer with the prescribed information and any additional information which the registering officer may require in order to satisfy himself or herself as to the existence of the marriage.

(3) A customary marriage –

(a) entered into before the commencement of this Act, and which is not  registered in terms of any other law, must be registered within a period of 12 months after that commencement or within such longer period as the Minister may from time to time prescribe by notice in the Gazette; or

(b) entered into after the commencement of this Act, must be registered within a period of three months after the conclusion of the marriage or within such longer period as the Minister may from time to time prescribe by notice  in the Gazette.

(4) (a) A registering officer must, if satisfied that the spouses concluded a valid customary marriage, register the marriage by recording the identity of the spouses, the date of the marriage, any lobolo agreed to and any other particulars prescribed.

(b) The registering officer must issue to the spouses a certificate of registration, bearing the prescribed particulars.

(5) (a) 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.

(b) 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 as contemplated in subsection (4).

(6) 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.

(7) A court may, upon application made to that court and upon investigation instituted by that court, 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.

(8) A certificate of registration of a customary marriage issued under this section or any other law providing for the registration of customary marriages constitutes prima facie proof of the existence of the customary marriage and of the particulars contained in the certificate.

(9) Failure to register a customary marriage does not affect the validity of that marriage’.

In Thembisile and Another v Thembisile and Another 2002 (2) SA 209 (T) it was held, that, as it was not disputed that the deceased had entered into a valid customary union with the first applicant, it was unnecessary to consider whether the customary marriage had been properly registered. In any event s 4(9) of the Act provided that failure to register a customary marriage did not affect the validity of that marriage. The court further held that the customary union between the deceased and the first applicant being common cause, the first respondent bore the onus of persuading the court that that union had been dissolved. A customary union was not against public policy and could not lightly be assumed to have been terminated by divorce. Proof on a balance of probabilities had to be adduced to support the contention of dissolution.

The Act recognises a marriage, which is valid at customary law and existed at the commencement of this Act, and further stipulates that a customary marriage entered into after the commencement of this Act, which complies with the requirements of this Act, is for all purposes recognised as a marriage.

It is clear from the wording of the provisio that the requirements for the validity of the marriage stipulated in terms of the Act do not apply retrospectively. They only apply to customary marriages entered into on or after 15 November 2000 unless the parties have registered their marriage within a period of 12 months after the commencement of the Act or within such a longer period as the minister may from time to time prescribe by notice in the Government Gazette to be effected or that they had applied to change the regime of their marriage as envisaged in terms of the provisions of Matrimonial Property Act 88 of 1984. In terms of s 4(3)(a) and (b) of the Act (GN1045 GG42622/8-8-2019) the minister recently prescribed the time period for registration up to 30 June 2024 for both customary marriage entered into on or after the commencement of the Act.

In conclusion, the non-registration of a customary marriage does not affect the validity of such marriage, thus such marriage is not null and void.

Dineo Caroline Machedi BCom Law LLB (UFS) is a legal practitioner at NW Phalatsi & Partners in Bloemfontein.

This article was first published in De Rebus in 2020 (May) DR 14.