# Recognition of Customary Marriages Act, 1998/2001-12-07

This is the text of the Recognition of Customary Marriages Act, 1998, as at 7 December 2001, that being the date on which the Judicial Matters Amendment Act, 2001, was published and came into force.
(English text signed by the President.) (Assented to 20 November 1998.)
Act
To make provision for the recognition of customary marriages; to specify the requirements for a valid customary marriage; to regulate the registration of customary marriages; to provide for the equal status and capacity of spouses in customary marriages; to regulate the proprietary consequences of customary marriages and the capacity of spouses of such marriages; to regulate the dissolution of customary marriages; to provide for the making of regulations; to repeal certain provisions of certain laws; and to provide for matters connected therewith.
as amended by
Judicial Matters Amendment Act, No. 42 of 2001
Be it enacted by the Parliament of the Republic of South Africa, as follows:—
Definitions
1. In this Act, unless the context otherwise indicates—
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
Recognition of customary marriages
2. (1) A marriage which is a valid marriage at customary law and existing at the commencement of this Act is for all purposes recognised as a marriage.
(2) A customary marriage entered into after the commencement of this Act, which complies with the requirements of this Act, is for all purposes recognised as a marriage.
(3) If a person is a spouse in more than one customary marriage, all valid customary marriages entered into before the commencement of this Act are for all purposes recognised as marriages.
(4) If a person is a spouse in more than one customary marriage, all such marriages entered into after the commencement of this Act, which comply with the provisions of this Act, are for all purposes recognised as marriages.
Requirements for validity of customary marriages
3. (1) For a customary marriage entered into after the commencement of this Act to be valid—
(a)
(i)
(ii)
(b)
(2) Save as provided in section 10(1), no spouse in a customary marriage shall be competent to enter into a marriage under the Marriage Act, 1961 (Act No. 25 of 1961), during the subsistence of such customary marriage.
(3) (a) If either of the prospective spouses is a minor, both his or her parents, or if he or she has no parents, his or her legal guardian, must consent to the marriage.
(b) If the consent of the parent or legal guardian cannot be obtained, section 25 of the Marriage Act, 1961, applies.
(4) (a) Despite subsection (1)(a)(i), the Minister or any officer in the public service authorised in writing thereto by him or her, may grant written permission to a person under the age of 18 years to enter into a customary marriage if the Minister or the said officer considers such marriage desirable and in the interests of the parties in question.
(b) Such permission shall not relieve the parties to the proposed marriage from the obligation to comply with all the other requirements prescribed by law;
(c) If a person under the age of 18 years has entered into a customary marriage without the written permission of the Minister or the relevant officer, the Minister or the officer may, if he or she considers the marriage to be desirable and in the interests of the parties in question, and if the marriage was in every other respect in accordance with this Act, declare the marriage in writing to be a valid customary marriage.
(5) Subject to subsection (4), section 24A of the Marriage Act, 1961, applies to the customary marriage of a minor entered into without the consent of a parent, guardian, commissioner of child welfare or a judge, as the case may be.
(6) The prohibition of a customary marriage between persons on account of their relationship by blood or affinity is determined by customary law.
Registration of customary marriages
4. (1) The spouses of a customary marriage have a duty to ensure that their marriage is registered.
(2) Either spouse may apply to the registering officer in the prescribed form for the registration of his or her customary marriage and must furnish the registering officer with the prescribed information and any additional information which the registering officer may require in order to satisfy himself or herself as to the existence of the marriage.
(3) A customary marriage—
(a)
in terms of any other law, must be registered within a period of 12 months after that commencement or within such longer period as the Minister may from time to time prescribe by notice in the Gazette; or
(b)
period of three months after the conclusion of the marriage or within such longer period as the Minister may from time to time prescribe by notice in the Gazette.
(4) (a) A registering officer must, if satisfied that the spouses concluded a valid customary marriage, register the marriage by recording the identity of the spouses, the date of the marriage, any lobolo agreed to and any other particulars prescribed.
(b) The registering officer must issue to the spouses a certificate of registration, bearing the prescribed particulars.
(5) (a) If for any reason a customary marriage is not registered, any person who satisfies a registering officer that he or she has a sufficient interest in the matter may apply to the registering officer in the prescribed manner to enquire into the existence of the marriage.
(b) If the registering officer is satisfied that a valid customary marriage exists or existed between the spouses, he or she must register the marriage and issue a certificate of registration as contemplated in subsection (4).
(6) If a registering officer is not satisfied that a valid customary marriage was entered into by the spouses, he or she must refuse to register the marriage.
(7) A court may, upon application made to that court and upon investigation instituted by that court, order—
(a)
(b)
effected by a registering officer.
(8) A certificate of registration of a customary marriage issued under this section or any other law providing for the registration of customary marriages, constitutes prima facie proof of the existence of the customary marriage and of the particulars contained in the certificate.
(9) Failure to register a customary marriage does not affect the validity of that marriage
Determination of age of minor
5. (1) A registering officer may, in respect of a person who allegedly is a minor, accept a birth certificate, an identity document, a sworn statement of a parent or relative of the minor or such other evidence as the registering officer deems appropriate as proof of that person’s age.
(2) If the age of a person who allegedly is a minor is uncertain or is in dispute, and that person’s age is relevant for purposes of this Act, the registering officer may in the prescribed manner submit the matter to a magistrate’s court established in terms of the Magistrates’ Court Act, 1944 (Act No. 32 of 1944), which must determine the person’s age and issue the prescribed certificate in regard thereto, which constitutes proof of the person’s age.
Equal status and capacity of spouses
6. A wife in a customary marriage has, on the basis of equality with her husband and subject to the matrimonial property system governing the marriage, full status and capacity, including the capacity to acquire assets and to dispose of them, to enter into contracts and to litigate, in addition to any rights and powers that she might have at customary law.
Proprietary consequences of customary marriages and contractual capacity of spouses
7. (1) The proprietary consequences of a customary marriage entered into before the commencement of this Act continue to be governed by customary law.
(2) A customary marriage entered into after the commencement of this Act in which a spouse is not a partner in any other existing customary marriage, is a marriage in community of property and of profit and loss between the spouses, unless such consequences are specifically excluded by the spouses in an antenuptial contract which regulates the matrimonial property system of their marriage.
(3) Chapter III and sections 18, 19, 20 and 24 of Chapter IV of the Matrimonial Property Act, 1984 (Act No. 88 of 1984), apply in respect of any customary marriage which is in community of property as contemplated in subsection (2).
(4) (a) Spouses in a customary marriage entered into before the commencement of this Act may apply to a court jointly for leave to change the matrimonial property system which applies to their marriage or marriages and the court may, if satisfied that—
(i)
(ii)
(iii)
order that the matrimonial property system applicable to such marriage or marriages will no longer apply and authorize the parties to such marriage or marriages to enter into a written contract in terms of which the future matrimonial property system of their marriage or marriages will be regulated on conditions determined by the court.
(b) In the case of a husband who is a spouse in more than one customary marriage, all persons having a sufficient interest in the matter, and in particular the applicant’s existing spouse or spouses, must be joined in the proceedings.
(5) Section 21 of the Matrimonial Property Act, 1984 (Act No. 88 of 1984) is applicable to a customary marriage entered into after the commencement of this Act in which the husband does not have more than one spouse.
(6) A husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of this Act must make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriages.
(7) When considering the application in terms of subsection 6—
(a)
(i)
(aa)
(bb)
(ii)
(iii)
(b)
(i)
(ii)
(iii)
(8) All persons having a sufficient interest in the matter, and in particular the applicant’s existing spouse or spouses and his prospective spouse, must be joined in the proceedings instituted in terms of subsection (6).
(9) If a court grants an application contemplated in subsection (4) or (6), the registrar or clerk of the court, as the case may be, must furnish each spouse with an order of the court including a certified copy of such contract and must cause such order and a certified copy of such contract to be sent to each registrar of deeds of the area in which the court is situated.
Dissolution of customary marriages
8. (1) A customary marriage may only be dissolved by a court by a decree of divorce on the ground of the irretrievable breakdown of the marriage.
(2) A court may grant a decree of divorce on the ground of the irretrievable breakdown of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.
(3) The Mediation in Certain Divorce Matters Act, 1987 (Act No. 24 of 1987) and section 6 of the Divorce Act, 1979 (Act No. 70 of 1979), apply to the dissolution of a customary marriage.
(4) A court granting a decree for the dissolution of a customary marriage—
(a)
(b)
(c)
(d)
(e)
(5) Nothing in this section may be construed as limiting the role, recognised in customary law, of any person, including any traditional leader, in the mediation, in accordance with customary law, of any dispute or matter arising prior to the dissolution of a customary marriage by a court.
Age of majority
9. Despite the rules of customary law, the age of majority of any person is determined in accordance with the Age of Majority Act, 1972 (Act No. 57 of 1972).
Change of marriage system
10. (1) A man and a woman between whom a customary marriage subsists are competent to contract a marriage with each other under the Marriage Act, 1961 (Act No. 25 of 1961), if neither of them is a spouse in a subsisting customary marriage with any other person.
(2) When a marriage is concluded as contemplated in subsection (1) the marriage is in community of property and of profit and loss unless such consequences are specifically excluded in an antenuptial contract which regulates the matrimonial property system of their marriage.
(3) Chapter III and sections 18, 19, 20 and 24 of Chapter IV of the Matrimonial Property Act, 1984 (Act No. 88 of 1984), apply in respect of any marriage which is in community of property as contemplated in subsection (2).
(4) Despite subsection (1), no spouse of a marriage entered into under the Marriage Act, 1961, is, during the subsistence of such marriage, competent to enter into any other marriage.
Regulations
11. (1) The Minister of Justice, in consultation with the Minister, may make regulations—
(a)
(i)
(ii)
(iii)
(iv)
(v)
disposal of any document relating to the registration of customary marriages or of any document prescribed in terms of the regulations;
(vi)
(vii)
(b)
(2) Any regulation made under subsection (1) must, before publication thereof in the Gazette, be submitted to Parliament.
(3) Any regulation made under subsection (1) which may result in financial expenditure for the State or regulations made under subsection (1)(b) must be made in consultation with the Minister of Finance.
(4) Any regulation made under subsection (1) may provide that any person who contravenes a provision thereof or fails to comply therewith shall be guilty of an offence and on conviction be liable to a fine or to imprisonment for a period not exceeding one year.
Amendment of laws
12. (1) Section 17 of the Deeds Registries Act, 1937 (Act No. 47 of 1937), is hereby amended by the substitution for paragraph (b) of subsection (2) of the following paragraph:
“(b)
(2) Section 45bis of the Deeds Registries Act, 1937, is hereby amended—
(a)
“(b)
(b)
“(b)
Repeal of laws
13. The laws mentioned in the Schedule are hereby repealed to the extent set out in the third column of the Schedule.
Short title and commencement
14. This Act is called the Recognition of Customary Marriages Act, 1998, and comes into operation on a date fixed by the President by proclamation in the Gazette.
Schedule
Repeal of laws
(Section 12)