Registration of customary marriages still creates confusion

May 1st, 2012
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By Nomfundo Manyathi

Customary marriages became legally recognised and protected in South Africa when the Recognition of Customary Marriages Act 120 of 1998 (the Act) came into force in November 2000.

Despite the Act being in operation for over 11 years, confusion still exists regarding registration of a customary marriage, as evidenced by the number of queries regarding the registration process that De Rebus has received. Registration is important as it provides de facto proof of the marriage.

A customary marriage is entered into in accordance with the traditional customs and culture of South Africa’s indigenous people. It is negotiated, entered into or celebrated according to African customary law such as lobolo.

According to the University of KwaZulu-Natal’s research, development and outreach unit, the Centre for Criminal Justice, it is important to register a customary marriage because –

  • it is easier to obtain maintenance;
  • it is easier for a spouse to claim a right to assets of a deceased spouse;
  • it is easier to prove rights to a deceased estate;
  • it is easier for a wife to enforce her property rights if her husband takes other wives; and
  • it assists the court in protecting the property rights and interests of a spouse or children in a divorce.

Registering a customary marriage

In terms of the Act, the marriage must be registered by either the wife or the husband at an office of the Department of Home Affairs within three months of the date of celebration or entering into of the marriage.

The executive director of the Women’s Legal Centre, Jennifer Williams, said that, according to the Act, failure to register the marriage does not render it invalid, but, as the certificate is de facto proof of the marriage, it will be difficult to prove that a marriage exists without one.

Anyone wishing to register a customary marriage must complete two application forms: Form DHA-1699, which is an application for registration/inquiry into the existence of a customary marriage, and form DHA-31, which is a declaration for the purpose of marriage. Ms Williams told De Rebus that some of the registration application forms provide space for the particulars and declarations of both spouses, which is misleading as it suggests that both of them, as well as a representative of each spouse, must be present before the registering officer.

Registration of the marriage is free. At the time of going to print, an abridged marriage certificate cost R 20 and an unabridged marriage certificate cost R 75. The time taken to register the marriage differs from case to case. Both parties’ identity documents must be presented for registration of the marriage and the presence of two witnesses who attended the marriage celebrations is required. Both parties must be over the age of 18.

However, if either of the parties is a minor, his parents or legal guardian must consent to the marriage. If consent cannot be obtained, s 25 of the Marriage Act 25 of 1961 becomes applicable. This section states that if a commissioner of child welfare is satisfied that a minor has no parent or guardian or is for any good reason unable to obtain consent, he may in his discretion grant written consent to the marriage but he shall not grant his consent if the parents refused to grant it.

The registering officer will require proof of the existence of the marriage such as a lobolo letter. He will also ask questions about the celebrations or lobolo negotiations in order to verify that these did in fact happen. If satisfied of the existence of a marriage, he will issue an abridged marriage certificate.

According to the South African Government Services website, if the registering officer is not satisfied with the information provided, he will not approve registration of the marriage and may refer the matter to court. The registering officer will issue the applicant with a letter stating the reasons for not approving registration of the marriage. A court may, on investigation, order that the customary marriage be registered, cancelled or rectified.

Although no restriction is placed on the number of customary marriages that a husband may enter into, he may not enter into any further customary marriages unless he has obtained an order from a court regulating the future matrimonial property system of his marriages. He is required to apply to court for its approval of a written contract regulating the future matrimonial property system of his marriages. His spouse(s) must accompany him to court and must consent to the further marriage.

The court will terminate any existing property system, ensure equitable distribution of assets and take into account the interests of all family groups concerned. It may allow amendments to the contract, insert conditions into it or disallow the contract.

A customary marriage may only be dissolved by a court on the grounds of irretrievable breakdown.

Ms Williams said that one of the common problems experienced by women in customary marriages was that many of these marriages were not registered. One of the reasons for this, she said, was that women did not always have the power in relationships to get their husbands to register the marriage. ‘Women often only seek to have the marriage registered on the death of the spouse or when the spouses separate. The law provides that one party may register the marriage yet many women are told that the marriage cannot be registered in the absence of a spouse or because the spouse disputed the validity of the marriage once the parties separate.’ Ms Williams said that in the case of a wife wishing to register a customary marriage after the death of her spouse, officials may ask that the wife bring a family member of the husband to confirm the marriage, however the husband’s family may not wish to recognise the marriage in order to inherit the estate.

Ms Williams said that a significant number of women approached the Women’s Legal Centre for assistance when their marriages were dissolved, either by death or divorce, adding that the queries the centre usually received related to the registration of a customary marriage, eviction of a wife by the husband’s family, the validity of a marriage and the division of an estate.

According to a Statistics South Africa survey on marriages and divorces in 2011, for the year 2010 9 996 customary marriages were registered at the Department of Home Affairs. This represented a decline from the previous year, with 15 506 such marriages registered.

The report stated that 2010 had the lowest number of registrations of customary marriages since 2003 to date, while 2004 had the highest number with 20 301.

Nomfundo Manyathi, nomfundo@derebus.org.za

This article was first published in De Rebus in 2012 (May) DR 24.

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