When Africans marry, you can choose to marry by African customary law OR by the ordinary civil law of the land. An African customary marriage takes place without a civil marriage officer. The families agree on the lobola or bride-price. The ceremony takes place after the man’s family has paid all or part of the lobola.
The Recognition of Customary Marriages Act of 1988 now gives full legal recognition to customary marriages. Before this Act, customary marriages were not recognised by law as they can be polygamous (which is against civil law). This Act now recognises customary marriages whether they are monogamous or polygamous.
The Act says the following:
Equal status and capacity: The wife in a customary marriage is no longer regarded as a minor. She has equal status and capacity to her husband. This means she can buy and sell assets, enter into contracts and take a case to court.
Validity: Both partners to a customary marriage must consent to the marriage and they must be 18 years or older. If a person under the age of 18 wants to enter into a customary marriage, he or she must first get permission from the Minister of Home Affairs.
Registration: The marriage must be registered with a registration officer at the Department of Home Affairs. The main purpose of registering the marriage is to provide proof that a customary marriage exists, which will help the parties if any dispute arises about the validity of the marriage.
Partners in customary marriages that were entered into before the Recognition of Customary Marriages Act was passed had 12 months to apply to have their marriage registered.This period has now passed.
Property and assets:
The property systems for customary unions entered into before the Act will continue to be governed by customary law. Partners to a customary union can apply to the High Court to change the property system of their marriage. If the husband wants to enter into another customary marriage, all of the wives can ask the High Court to help them develop a new property system for their marriage. The court will try to look after the interests of all the parties by deciding how much the assets are worth and making sure that the existing wife and children get a fair deal.
All new marriages formed after the Act will automatically be in community of property unless the parties draw up an ante-nuptial contract.
Custody of children:
The court can decide who will have custody of children born into a customary marriage and what maintenance should be paid. The decision will be based on what is best for the children.
All these changes are in addition to any rights or powers women already had under customary law. A customary union is still recognised for these cases:
• the partners can claim support money from each other if they are divorced
• a wife can claim some inheritance rights if her husband dies
• a wife can claim benefits under a pension scheme if her husband dies
• a wife can claim compensation under the Compensation for Occupational Injuries and Diseases Act if her husband dies in an accident at work.