Getting married under customary law
The Recognition of Customary Marriages Act (RCMA) became law on the 15 November 2000. If you were in an existing valid marriage under customary law before this date, your marriage is recognised under this new law. When a husband already had more than one wife under customary law all of those marriages are recognised under this new law. This Act regulates customary marriages entered into after this Act came into operation and states the rules that the people getting married under customary law must follow in order for their marriage to be recognised.
The RCMA recognises all customary marriages that were valid under customary law. This includes those marriages that were regarded as invalidated by the Black Administration Act. Further, customary marriages under the Transkei Marriage Act (TMA) could co-exist with a civil marriage out of community of property, all those marriages, if they were valid under the TMA they are recognised by the RCMA.
A customary marriage is recognised if people getting married under customary law have complied with the following requirements:
- Both parties to the marriage must be above the age of eighteen years.
- Both parties must consent to being married under customary law.
- The marriage must be negotiated, celebrated and entered into in accordance with customary law.
- Lobola is not a necessary requirement for the validity of the customary marriage, however, if it is paid, it proves that the marriage was negotiated in accordance to custom. (Note that these marriages have always been recognized under customary law).
When should I register my marriage?
Even though not registering the customary marriage does not invalidate the marriage where there is one husband and one wife, it does invalidate the marriage if the husband is marrying a second wife after the commencement of this Act. Therefore, registration is encouraged as it constitutes prima facie proof of the existence of a customary marriage. After the coming into effect of the RCMA, all marriages, those entered into prior to or post 15th November 2000 must be registered with the Department of Home Affairs. If you were married after the law was passed, you should register your marriage within three months after the marriage.
Note: Non-registration of a customary marriage where there is one husband and wife does not invalidate the marriage, however, non-registration of a subsequent customary marriage invalidates the customary marriage.
Customary Marriages and Community of Property
All customary marriages where there is one husband and one wife whether entered into prior or after the coming into operation of the Act are in community of property (Gumede v President of the Republic of South Africa 2009 (3) BCLR 243 (CC). This means that the husband and wife have an equal share in the assets, money and property and also means that they share all the debts. If the parties would like their marriage to be out of community of property they will have to enter into an ante-nuptial contract prior to getting married. If they want to change after they are already married they will have to apply to the High Court.
Under the RCMA the wife has equal right and status with the husband to decide what happens to the property. A customary wife now has the capacity to enter into a contract without the assistance of the husband.
What if my husband wants to marry another wife?
The husband must enter into a written agreement / contract which will state what should happen to the property and then the husband must apply to the court to approve the written contract. The court has to make sure that all the property interests of all wives are protected.
What if we want to enter into a civil marriage after marriage under customary law?
If your husband has no other wives, you can get married under civil law as well as customary law. However, neither of you will be able to enter into customary marriages with anyone else while you are married to each other under civil law.
Steps to follow
Registering customary marriages
Customary marriages must be registered within three months of taking place. This can be done at any office of the Department of Home Affairs or through a designated traditional leader in areas where there are no Home Affairs offices.
The following people should present themselves at either a Home Affairs office or a traditional leader in order to register a customary marriage:
- the two spouses (with copies of their valid identity books and a lobola agreement, if available)
- at least one witness from the bride’s family
- at least one witness from the groom’s family
- and/or the representative of each of the families
- at least one witness from the bride’s family
In the event that the spouses were minors (or one was a minor) at the time of the customary marriage, the parents should also be present when the request to register the marriage is made.
Customary marriages are registered by completing BI-1699 and paying the required fees. An acknowledgement of receipt BI-1700 will then be issued by the Department of Home Affairs.
Registering more than one customary marriage
If a male person is already in a customary marriage and wishes to enter into another customary marriage he has to, at his own cost, get a court order from a competent court which will regulate his future matrimonial property system.
It is also possible for a male person who is already in a customary marriage to enter into a civil marriage with the current customary wife. They should follow the normal procedure for civil marriages. A spouse in a customary marriage cannot enter into a civil marriage with another woman.
Divorce under the RCMA
Only the court of law can grant a divorce decree and the ground of divorce is the fact that the marriage has broken down to an extent that it cannot be restored.
Custody of children under the RCMA
The court will decide on the custody of children based on the best interest of the children not who paid lobola.
The Recognition of Customary Marriages Act, 1998 (Act 120 of 1998) and related regulations are available on this page: http://www.justice.gov.za/legislation/acts/acts_full.html
- An abridged certificate is issued immediately.
- An unabridged certificate takes six to eight weeks.
- The registering officer will inform you if he or she refuses to register a customary marriage as contemplated, stating the reasons for the refusal.
Please contact the Home Affairs offices to enquire on the costs involved.
Forms to complete
Please contact the Home Affairs offices to enquire on the forms to be completed.
Department of Justice: Gender Issues
Tel: 012 315 1670
Fax: 012 315 1960
Physical address: Gender Issues, Momentum Centre, 329 Pretorius Street (c/o Pretorius and Prinsloo Streets), Pretoria, 0001
Postal address: Private Bag X81, Pretoria, 0001