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  Legalwise Wiseup  
     
  April 2016  
     
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Customary Marriages: How the law is applied
Customary marriages are recognised as valid marriages and certain requirements must be complied with

  • Moshe and Neno want to get married in terms of custom. However, they are worried their marriage will not be recognised in South Africa. Are there any requirements to be met?
  • Customary marriages are recognised as valid marriages in terms of the Recognition of Customary Marriages Act 120 of 1998 (“Act”).
  • After 15 November 2000, certain requirements were set out in the Act that must be complied with.
  • The requirements are as follow:
    • The marriage must be negotiated, entered into or celebrated in accordance with customary law. This means that the marriage must be entered into in line with the traditions and customs of the parties.
    • The parties who are getting married must be 18 years or older. If one or more of the parties are minors (below the age of 18 years), both his/her parents or legal guardian must give consent to the marriage.
    • The parties must also be competent to marry each other, meaning that they must not be blood relatives. For example, a brother and sister are not allowed to marry each other.
    • Both parties’ consent is required for the marriage to be valid. A person who cannot give consent, such as a mentally insane person, will not be able to get married.
    • The marriage must be lawful.
  • The payment of lobola is not a specific requirement in terms of the Act, but it is considered to be part of practice when concluding a customary marriage.
  • There is a duty on parties in a customary marriage to register the marriage within three months after the conclusion of the marriage at the Department of Home Affairs.
  • If the registering officer is satisfied that a valid customary marriage has come into existence, the customary marriage will be registered and the parties will be provided with a registration certificate.
  • This registration certificate will be proof of the existence of the customary marriage and may avoid disputes that might occur in the future.
  • Moshe is now married to Neno in terms of customary law. Neno insists that they enter into a civil marriage with each other. While this civil marriage exists between them, Moshe will not be able to enter into another customary marriage with Zuzu, his other girlfriend.
  • The Act allows a person to have more than one marriage with different persons at the same time (polygamous marriages). Polygamous marriages can only be legal if all the marriages are customary marriages. A person is not allowed to have a customary marriage and a civil marriage at the same time with different parties; however, a couple who is married with each other in terms of customary law, may enter into a civil marriage with each other as well.

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  Inside this Issue  
 
Letter from the Chief Executive Officer
You as a Parent
What did the Judge say?
Customary Marriages: How the law is applied
Frequently Asked Questions
Letters from Members
Increasing Literacy in the Community
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