Requirements for a valid customary marriage

1.   The prospective spouses must both be above the age of 18 years;
2.   They must both consent to be married to each other under customary law; and
3.   The marriage must be negotiated and entered into or celebrated in accordance with customary law.
4.   The parties must not be prohibited from marriage because of relationship by blood or affinity as determined by customary law.
5.   In addition to the above requirements, a husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of the Act, must comply with a further requirement set out in section 7(6) of the Act, namely an application to the High Court to approve a written contract which will regulate the future matrimonial property system of his marriages. Non-compliance does not render the subsequent marriage null and void, but will render it to be a marriage out of community of property. The husband must obtain the consent of the first wife before he may enter into a further customary marriage. Failure to do so will render the further marriages automatically as out of community of property.
6.   A party to a civil marriage cannot validly enter into a customary marriage with another person while the civil marriage exists.

What’s more, a customary marriage must be registered at the Department of Home Affairs within three months after entering into the marriage or within such period as the Minister may from time to time prescribe by notice in the Gazette. A marriage certificate will then be issued and serve as written proof of the couple’s marital status. The marital status of spouses who have registered their customary marriages will only then, after registration, reflects on official records as married, just like in civil marriages. Hence to produce a marriage certificate wherever a spouse go is taken as proof enough that the party is indeed married.

To register a customary marriage, the couple needs to take the following to Home Affairs:

• Copies of their identity documents and a lobola agreement letter, if available;
• One witness from the bride’s family;
• One witness from the groom’s family; or
• A representative of each of the families.

People must also remember that failing to register a customary marriage does not invalidate the marriage, but it is highly advisable to register a customary marriage as immediately or as soon as possible in order to avoid potential disputes regarding the validity of the marriage. A customary marriage certificate will help spouses to prove their marriages should they need to file for maintenance against each other, in case of divorce or their claims against the Road Accident Fund. It will also make it impossible for one of the spouses to sell valuable assets such as a house without the written approval or consent of both spouses. It will also help the surviving spouse to obtain the letters of authority from the Master of High Court after the death of either of them and to claim what they are entitled to as surviving spouses, just like in civil marriages.

Proving the existence of a customary marriage that has not been registered can pose a problem to the surviving spouse, the executor in an estate as well as the Master of High Court when an estate is reported, especially when the existence of such marriage is being disputed by interested parties who most of the time are disputing the existence of the marriage in order for them to benefit from the estate of the deceased. The deceased’s parents and family usually turn their back on their children in law and grandchildren and argue that the marriage is invalid for some reasons and further deny paternity for their grandchildren. All these efforts just to deprive the rightful beneficiaries of the estate of what is rightful theirs.

This will impact on the eligibility to inherit from an estate. Registration of a marriage is fundamental to the protection of the rights of the parties, especially women and children in customary marriages.

The Act also recognises all customary marriages that were valid under customary law before the commencement of this Act and provides that these marriages should be registered within a period of 12 months from the commencement of this Act or within such period as the Minister may from time to time prescribe by notice in the Gazette.

If the husband is already a party to a customary marriage and wishes to enter into another customary marriage he has to get a court order from a competent court which will regulate his future matrimonial property system.

A spouse in a customary marriage cannot enter into a civil marriage with another woman. Spouses who are married to each other in terms of customary law are eligible to enter into a civil marriage with each other.

It happens that after the marriage has been entered into, one of the spouses refuse to go to Home Affairs to register the marriage. This usually happens when the relationship between the parties starts to break down.

The worst scenario is that after the death of one of the spouses, especially after the death of the husband, the surviving spouse is required to produce a marriage certificate that does not exist because the marriage was not registered. The surviving spouse will not be able to administer the deceased’s estate without this marriage certificate and will also not be able to transfer the deceased’s immovable property (house) into his or her name due to lack of this certificate. This may sound like something which will never happen to you or your loved ones, If and when it does happens that you are required to register your customary marriage and to produce a marriage certificate, but are unable to do so because of the reasons that we have stated herein; or because of any other reason,

Then call us urgently! We know how to help you.

We can help you to obtain a marriage certificate even after the death of your spouse.

Mavhengani Attorneys Inc.
Attorneys, Notaries & Conveyancers
Tel. 011 845 7940
Cell. 074 434 6085
Email. info@mavhenganiattorneys.co.za