Customary marriages pose challenges in conveyancing due to the historical legal status assigned to them. There is often confusion regarding the legal status of the parties and their legal position in conveyancing matters. The purpose of this article is to clear such confusion and set out the correct description to be assigned to parties married in terms of Customary law for the purpose of conveyancing transactions.
Traditionally, various Black communities in South Africa follow their customs and practices, including marriage customs. Initially, these customs were not recognized by the law, and customary unions were not considered marriages under South African Law. However, this changed in 1998 with the passing of the Recognition of Customary Marriage Act, which validated all customary unions as marriages in the eyes of the law.
In a country like South Africa which carries with it a great deal of diverse and unique cultures, this inclusion of all customary marriages was well accepted in the rainbow nation. According to the Recognition of Customary Marriages Act of 1998 which came into operation from November 15, 2000, customary unions are now recognized as marriages, and parties to such marriages are prohibited from marrying under the Marriage Act no. 25 of 1961.
So, what constitutes a customary marriage? As defined in the Act, it’s a marriage conducted in accordance with customary law and must meet these main requirements:
- Both parties must be 18 years or older.
- Both parties must consent to the marriage.
- The marriage must be negotiated, entered into, or celebrated in accordance with customary law.
- No spouse of a marriage entered into under the Marriage Act, 1961 during the subsistence of such marriage is competent to enter into any other marriage (including a customary marriage.
- If the husband is already married by customary law his existing wife must consent to the proposed marriage.
The first two requirements are quite straight forward and do not cause any issues or confusion. The last requirement however, which involves lobola negotiations and some form of celebration, can be more complicated. Lobola, or bride price, must be negotiated and agreed upon by both parties, but it’s not necessary for the full lobola to be paid. The Act also states that there must be some form of celebration of the marriage, such as the handing over of the bride. Unfortunately, many young people enter into customary marriages without fully understanding the legal implications. They may do so to honor their families’ customs without realizing that they are legally married and must register their marriage within three months. The act further states that a failure to register such customary marriage does not in any event affect the validity of that marriage.
If parties are married in terms of customary law they are deemed to be married in community of property unless an Antenuptial contract (ANC) has been registered, which would render the marriage out of community of property. All conveyancing related documents must describe them as such. The lack of understanding on when a customary marriage has been concluded can lead to situations in which couples unknowingly and unwillingly find themselves married in community of property. They only find that they are married in community of property when they wish to purchase a property and find out that they are to be described on all transfer documents as married in community of property.
To ensure compliance with the law and understand their rights and obligations, individuals are advised to determine their marital status and the matrimonial property system that will govern their marriage.
TATENDA CHIRORO
CONVEYANCER & NOTARY