What is a Customary Law Marriage?

Customary law marriage, also known as "traditional marriage," is a form of union that is recognized under customary law in South Africa. It is a unique form of marriage that is steeped in cultural traditions and practices. If you are considering or currently in a customary law marriage in South Africa, this guide will help you understand what it entails.

Recognition of Customary Law Marriage

In South Africa, customary law marriages are recognized as a legal union under the Recognition of Customary Marriages Act. This means that if two people enter into a customary law marriage and meet certain requirements, their marriage is recognized as legal.

Requirements for Customary Law Marriage

To be recognized as being in a customary law marriage in South Africa, the following requirements must be met:

• The marriage must be negotiated and entered into according to customary law;

• 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;

• Both parties must consent to the marriage; and

• The parties must also be competent to marry each other (e.g. they must not be blood relatives and/or must not be married to anyone else at the time of the marriage).

There is a duty on parties in a customary marriage to register the marriage within 3 (three) months after the conclusion of the marriage at the Department of Home Affairs.

In addition, if the husband wishes to take additional wives in a polygamous marriage, he must obtain the consent of his existing wife or wives and must register the marriage with the Department of Home Affairs.

Lobola, a traditional form of bride price, is not a specific requirement in terms of the Act, but it is considered to be part of practice when concluding a customary marriage.

Legal Implications of Customary Law Marriage

One of the main legal implications of a customary law marriage is that it comes with certain rights and obligations. These rights and obligations include the right to inherit from each other in the event of death and the right to claim maintenance and support in the event of divorce.

In South Africa, customary law marriages are also recognized as being potentially polygamous, which means that a husband can have multiple wives. However, polygamous marriages are subject to certain legal requirements and restrictions.

Divorce in Customary Law Marriage

In the event of divorce in a customary law marriage, the division of property is governed by customary law principles. This means that the court will consider the traditions and practices of the community in which the marriage was entered into and will divide the property accordingly.

Conclusion

Customary law marriage is a recognized legal union in South Africa, and it comes with certain legal implications. If you are in a customary law marriage or considering entering into one, it is important to understand the requirements for recognition and the legal rights and obligations that come with it. By being aware of the legal implications, you can make informed decisions about your relationship and protect your legal rights.

Barter McKellar’s family law attorneys have extensive experiencing on advising on matters of this nature. If you would like to find out more, contact our offices today to schedule a consultation.