Legal challenges of unregistered customary marriages: The impact of optional registration under the Recognition of Customary Marriages Act

November 1st, 2024
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Picture source: Getty/iStock

By Lebo Collins Manzini

The Recognition of Customary Marriages Act 120 of 1998 (RCMA) provides and enhances the legal recognition of traditional marriages. Section 3 establishes the requirements that must be fulfilled in order for a valid customary marriage to be fully recognised. The RCMA, further, governs the proprietary effects of such marriages and registration thereof. In particular, the registration of customary marriages is crucial because it facilitates the process of obtaining maintenance, proving rights to a deceased spouse’s inheritance, claiming assets, and enabling a spouse to assert her property rights. Customary marriages are rooted in cultural practices and are guided by specific ethnic groups, customs and norms (PM Attorneys ‘What happens if a customary marriage is not registered?’ (www.pmattorneys.co.za, accessed 21-9-2024)). They are important for their cultural significance and legal recognition in many regions. However, without proper registration, these marriages face legal hurdles, impacting on their rights and responsibilities.

‘When a customary marriage is unregistered, its legal status becomes ambiguous’ (PM Attorneys (op cit)). ‘This lack of formal recognition may lead to challenges’ when it comes to claiming loss of support, especially with the Road Accident Fund (RAF) and intestate inheritance (PM Attorneys (op cit)). ‘For instance, in the event of a dispute or the death of a spouse, proving the legitimacy of the marriage becomes crucial’ and, in most cases, difficult (PM Attorneys (op cit)). Section 4(9) of RCMA makes providing the existence of a valid customary marriage difficult and ‘the existence of concomitant rights and duties of such customary spouses remains an onerous task’ for the surviving spouse to prove because it makes registration optional, and the majority of the spouses see no need to register their customary marriages (K Meikle ‘Proving the validity of customary marriages in loss of support claims’ (https://lhllaw.co.za, accessed 21-9-2024)).

Registration provision

In terms of s 4(2) of the RCMA, any spouse in a customary marriage may apply to register their marriage in the specified form. They have the duty to provide the relevant information required in order to establish that the marriage actually exists. The RCMA requires the registering officer to register the marriage by noting the names of the spouses and the date of the marriage, a lobola agreement, and any other necessary information if the officer is satisfied that a valid customary marriage exists.

Nonetheless, a customary marriage remains valid even if it is not registered as provided in s 4(9) of the RCMA. It is safe to say that s 4(9) has made registration of a customary marriage optional and this has weakened the necessity for registration. This provision is problematic because it creates obstacles by making it difficult to establish the validity of an unregistered customary marriage without de facto evidence. Spouses in customary marriages frequently encounter the problem that their marriages are not being recognised, as they are not registered. Spouses frequently depend on their partners because they think they lack the authority to do so on their own or because they live in remote areas and find it difficult to reach the registration office. While most women are aware of the registration procedure, s 4(9) makes registration optional, which discourages customary marriages from being registered by the parties.

In most cases, wives typically only learn that their marriage was never officially registered after their husband passes away, and only then do they start to realise the ramifications of non-registration. Unregistered traditional marriages also present challenges for the Master or Executor of an intestate estate, particularly if members of the deceased’s family are contesting the existence of the marriage. Consequently, as confirmation of the marriage’s existence, the Master may require the certificate of registration of the marriage.

The posthumous registration and the Master’s office

As previously stated, institutions such as the Master of the High Court view registration as the standard for legality even if customary marriages are not invalidated by non-registration. Whenever someone’s marital status comes into question, they are tasked with presenting their marriage certificate. Once the requirements for a customary marriage, including a celebration and lobola, have been fulfilled, the spouses can obtain a registration certificate only by approaching the Department of Home Affairs (DHA) to have their marriage registered. Spouses in a customary marriage cannot obtain a marriage certificate without registration and the Master’s office is unlikely to recognise their marriage, if they do not have a marriage certificate.

Surviving spouses find it difficult to inherit the deceased’s estate if the husband died intestate, which occurs frequently. The surviving spouses are left with the consequences of non-registration. Nonetheless, after a husband passes away, a surviving spouse can still legally register their customary marriage. If the husband passed away intestate, his family may decide to contest the marriage to receive benefits from the estate. To confirm the existence of the marriage, DHA representatives might request that the wife bring a member of her husband’s family to confirm the existence of the customary marriage.

In Khashane v Minister of Home Affairs and Others 2024 (5) SA 242 (GP), the applicant applied to the court for an order seeking, inter alia, condonation of the late registration of her customary marriage under s 4 of RCMA. In 1990, the applicant and the deceased met, and the deceased expressed his intention to marry her. Lobola negotiations were conducted, and in 1993, the applicant was welcomed into the deceased’s family as a daughter-in-law. The applicant and the deceased’s sister confirmed the events in affidavits. The applicant claimed she was unaware of the customary marriage registration requirement and never took any steps to register it.

‘The [RCMA] requires all customary marriages which existed before the promulgation of the Act in 1998 be registered and sets out procedures for doing so within stated time frames, as well as for interested parties to approach the court. Importantly, section 4(9) provides that failure to register a customary marriage does not invalidate such marriage. After [her husband’s] death [the applicant] approached the Master to register the estate and to appoint her as executor. The Master refused on the basis that the marriage was not registered …, despite [the applicant] providing proof of the existence of the marriage, on the basis that the [RCMA] does not make provision for posthumous registration. The Master referred [the applicant] Home Affairs, but Home Affairs refused to register the marriage. None of [the applicant’s] assertions in her application were disputed by either the Master or Home Affairs’ (FISA ‘Court case: Posthumous recognition of customary marriage – Khashane v Minister of Home Affairs and Others’ (www.fisa.net.za, accessed 21-9-2024)).

‘The court (Khwinana AJ) held that the interpretation of both Home Affairs and the Master of the provisions of the [RCMA] is too narrow and ordered the 1st (the Minister of Home Affairs) and 2nd respondents to: 1) condone the late registration of the customary marriage …; 2) register the marriage as a valid customary marriage; 3) issue [the applicant] with a marriage certificate within 30 days from the date of the order (12 January 2024) … . The court also advised both Home Affairs and the Master to facilitate closer co-operation between their departments on matters relating to customary marriages and to ensure proper training of their staff on the provisions of the [RCMA]’ (FISA (op cit)).

Loss of support claims against the road accident fund

The RAF was enacted in terms of the Road Accident Fund Act 56 of 1996 as amended. It was established in order to provide compensation for any fatalities or injuries resulting from a motor vehicle driven negligently on public roads (Mufaro Mushonga-Hove ‘The untold dilemma of loss of support RAF claims in customary marriages’ 2024 (May) DR 20). When a breadwinner dies in a motor vehicle accident, their dependents may be entitled to compensation under s 17(4)(c) for loss of support. It should be noted that this is not a given because there are conditions that must be fulfilled in order to successfully file for loss of support. It is necessary to demonstrate, inter alia, that the claimant(s) lost the financial support because of the death.

Claims for loss of support against the RAF are impacted by the non-registration of customary marriages. The RAF may dismiss a claim for loss of support by taking the view that the applicant is not a spouse since they are unable to produce a marriage certificate. Therefore, to prove compliance with s 3 of the RCMA, the spouse will need to prove this on a balance of probabilities. The court in M v Road Accident Fund (GP) (unreported case no 62773/2012, 21-12-2020) (Mngqibisa-Thusi J), stated that a valid customary marriage can be established through proof of lobola negotiations, payment thereof, bride handover to groom’s family, and celebration. These requirements are considered as additional to the marriage. Witness affidavits and testimony from both spouse and deceased spouse’s families are often used to support these claims. However, not all deceased families are willing to produce such affidavits, often due to their lack of approval for the marriage. This further creates difficulties for the surviving spouse.

In TZ obo Minors v Road Accident Fund (GP) (unreported case no 29192/2017, 22-6-2021) (Tsatsi AJ), the plaintiff lodged a claim against the RAF for loss of support after her husband’s death, leaving her with four children. The RAF argued that the deceased had no duty to support due to the plaintiff’s inability to produce a marriage certificate. The court ruled that the marriage was legally valid and further held that although there was no celebration, the reciprocal duty to support existed between the parties.

Why mandatory registration matters

In cases where the validity of a customary marriage is contested or requires verification, the parties involved will always have easy access to marriage certificates at their disposal. This would consequently also remove the requirement for legal action to establish the valid existence of a customary marriage. It is crucial, therefore, that the compulsory registration of customary marriages should not be blindly approached (Siyabonga Sibisi ‘Registration of customary marriages in South Africa: a case for mandatory registration’ (2023) 44 Obiter 515). While the goal is to put spouses in a customary marriage in a similar position as spouses to a civil marriage, there are differences in the procedures involved in registering these marriages (Sibisi (op cit)). The state provides strong support for civil marriage registration, which provides that civil marriages are promptly registered after they are consummated (Sibisi (op cit)). It is not the same with customary marriages. At present, it is the spouses’ responsibility to register their customary marriages.

Although some spouses may not be aware of the need to register their marriage (and even if they are aware), they may choose not to do so due to the complexity and cost of the registration process (Sibisi (op cit)). Customary marriages are valid regardless of registration, and if there are no potential benefits, a spouse may choose not to register the marriage. It is recommended that the registration process be made mandatory. The policy and legislation should prioritise registration of customary marriages to ensure legal certainty and protect women’s rights. Rural women should be educated on registration requirements, as legislation allows either party to register the marriage. Prioritising registration is meaningful only if women’s expectations are considered, ensuring accessibility and overcoming obstacles. The RCMA outlines that registering officers and designated persons are crucial for customary marriage registration, including traditional leaders. The government should train and activate these traditional leaders for the registration process (Sibisi (op cit)). Registering customary marriages is recommended to avoid legal complications and ensure their validity, as it eliminates the need to resolve the process through the court.

Conclusion

‘Registration of a customary marriage is a step that bridges traditional practices with modern legal requirements. It simplifies the legal processes, ensuring that rights are protected under the law. Registering a customary marriage also provides a clear legal record, which can be invaluable in administrative and legal matters’ (PM Attorneys (op cit)). The justification for compulsory registration of customary marriages is that it will be enhance by addressing most, if not all, of the issues that non-registration has caused and continue to do (Sibisi (op cit)). This article submits that customary marriages must be compulsorily registered as soon as possible after they are entered into, ideally within a specific time limit (Sibisi (op cit)).

Lebo Collins Manzini LLB (UL) is a candidate legal practitioner at Finger Attorneys in Centurion.
This article was first published in De Rebus in 2024 (Nov) DR 32.

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