The Recognition of Customary Marriages Act 120 of 1998 came into force on 15 November 2000. This legislation officially recognises all customary marriages within South Africa be they monogamous or polygamous. The Act further awards women who are party to customary marriages the same status and protection that women who are in civil marriages are  granted. In terms of the Act, a customary marriage is defined as a marriage which is concluded in terms of customary South African law.  

For such a marriage to be valid the following requirements must be met according to the provisions of the Act:

1. Both spouses must agree to be married to each other under customary law;
2. The marriage negotiations, rituals and celebrations need to be conducted in terms of customary law
3. Prospective spouses need to be over the age of 18
4. Should either the bride or the groom be under the age of 18 then the consent of the parent or legal  guardian of that spouse needs to be obtained

All customary marriages which were concluded prior to 15 November 2000 are  valid provided that all the requirements as provided for by the Act are met. Spouses in customary marriages cannot enter into a civil marriage with any another person except for their customary marriage spouse. A civil marriage of such spouses will be community of property unless such spouses agree prior to the marriage to have the marriage governed by another matrimonial property regime. This means that both the spouses will have equal power and equal shares in the property of the marriage. Both spouses require the consent of each other before disposing with any item belonging to the joint estate. In the event of the dissolution of the customary marriage by death or divorce, the marriage joint estate will be divided equally between the two spouses.
A customary marriage can be registered at your nearest Department of Home Affairs.

The following will be required for Home Affairs to register the marriage:

1. The physical presence of both spouses at Home Affairs
2. A witness from the husbands family
3. A witness from the wife’s family
4. Identity documents of the spouses as well as all witnesses
5. The original lobola agreement

According to the Act, either of the spouses can approach Home Affairs to have the marriage registered.  It is important to take note that the Act specifically stipulates that a customary marriage will not be invalid if it is not registered at Home Affairs. The Customary Marriages Act also allows for a person who has sufficient interest to come before home affairs and to make an application to enquire into the existence of that customary marriage. This means that children born to spouses who were married in terms of custom can approach Home Affairs to bring such an application. Once an enquiry has been conducted the marriage officer will issue a marriage certificate if it is established that a customary marriage did indeed exist. 
Spouses in customary marriages need to realise and understand that it is very important to register a customary marriage. Many undesirable situations can be avoided through registering the marriage.

The benefits of registering your customary marriage are as follows:

• To make it easier for the surviving spouse to claim a right to the assets of a deceased husband or wife
• To make it easier for the children and family members to prove their right to a deceased estate
• To help the court to protect the property rights of a spouse in a divorce
• To help the courts to protect the rights of dependent children in the event of a divorce

A customary marriage is terminated by death or divorce. In terms of section 8 of the Recognition of Customary Marriages Act, a customary marriage can be dissolved by divorce due to irretrievable breakdown of a marriage. In this instance the court will grant a divorce order if it is satisfied that the marriage has degenerated such that the prospects of a normal marriage relationship can no longer exist between the parties.

Looking back at Ms Simelane’s current situation it is evident that a lot of trouble could have been avoided through the simple process of registering the marriage. 
Register your customary marriage, it’s the right thing to do!