Customary Marriages Part 1/3
Why should you register a customary marriage under the Recognition of Customary Marriages Act?
Problematic to many customary marriages is lack of a documentary record that the marriage exists. If the husband takes further wives, complications arise in determining who the heirs of the husband are when he passes away. This article discusses why a customary marriage must be registered to protect the claim of a surviving spouse upon her husband’s death.
Per the Recognition of Customary Marriages Act of 1998, all customary marriages, whether registered or not are recognised as valid. However, many women only register the customary marriage after their husband dies. Under these circumstances evidence of a customary marriage has to be produced for it to be registered. Often, proof that a customary marriage existed is difficult to establish. Also, the Department of Home affairs lacks the necessary resources to establish the existence of a customary marriage.
A customary marriage is recognised as a bond between two families, where the woman becomes a daughter of the family of the husband. Given the ritualistic nature of a customary marriage, these ritualistic practices are not recorded. Unfortunately, many woman suffer when their husband dies, she is forced out of the family leaving her destitute. The husband’s family has to vouch that various ritualistic practices were done for a valid customary marriage to be established. It becomes difficult for the woman to find someone to vouch for the marriage as everyone seeks to protect their own claims to their husband’s estate. If the marriage is unregistered the surviving spouse can lose her share of her husband’s estate when there are disputes about the validity of a customary marriage.
Registered customary marriages are viewed by law as being in community of property. This means the partners to the marriage have equal share to the property they acquired together. The customary marriage registration process is easy; the couple must provide to a registration officer, identity documents, date of marriage, lobolo agreed, and details of prescribed rituals. A registration certificate is issued to the spouses and serves as proof of the existence of a customary marriage. However, if a further marriage is entered into a more complicated process is involved. Requirements for a further customary marriage are not discussed in this article, but essentially the parties will have to approach the court before a further customary marriage can be registered.
Author: Ntiska Sifuba LLB (UWC)