RECOGNITION OF CUSTOMARY MARRIAGES ACT 120 OF 1998
RECOGNITION OF CUSTOMARY MARRIAGES ACT 120 OF 1998
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RECOGN I TI ON OF CUSTOM ARY M ARRI AGES ACT 1 2 0 OF 1 9 9 8
[ ASSENTED TO 20 NOVEMBER 1998] [ DATE OF COMMENCEMENT: 15 NOVEMBER 2000]
( English t ext signed by t he President )
as amended by
Judicial Mat t ers Am endm ent Act 42 of 2001
also am ended by
Jurisdict ion of Regional Court s Am endm ent Act 31 of 2008 [ w it h effect from a dat e t o be proclaim ed - see PENDLEX ]
Regulations under this Act
RECOGNI TI ON OF CUSTOMARY MARRI AGES ACT 120 OF 1998, REGULATI ONS I N TERMS OF THE ( GN R1101 in GG 21700 of 1 Novem ber 2000)
ACT
To m ake provision for the recognition of custom ary m arriages; to specify the requirem ents for a valid custom ary m arriage; to regulate the registration of custom ary m arriages; to provide for the equal status and capacity of spouses in custom ary m arriages; to regulate the proprietary consequences of custom ary m arriages and the capacity of spouses of such m arriages; to regulate the dissolution of custom ary m arriages; to provide for the m aking of regulations; to repeal certain provisions of certain law s; and to provide for m atters connected therew ith. 1 Definitions
I n t his Act , unless the cont ext ot herwise indicates-
'cou r t ' m eans a High Court of Sout h Africa, a fam ily court est ablished under any law or a Divorce Court est ablished in t erm s of sect ion 10 of t he Adm inist rat ion Am endm ent Act , 1929 ( Act 9 of 1929 ) ;
[ Definition of 'court' substituted by s. 19 of Act 42 of 2001.]
[ N B: The definit ion of 'cou r t ' has been subst it ut ed by s. 10 ( 2) of t he Jurisdict ion of Regional Court s Am endm ent Act 31 of 2008, a provision which will be put int o operat ion by pr oclam at ion. See PENDLEX . ]
'custom ary law ' m eans the custom s and usages traditionally observed am ong the indigenous African peoples of South Africa and which form part of t he cult ure of those peoples;
'custom ary m arriage' m eans a m arriage concluded in accordance with custom ary law;
'lobolo' m eans the property in cash or in kind, whether known as lobolo, bogadi, bohali, xum a, lum alo, thaka, ikhazi, m agadi, em abheka or by any other nam e, which a prospective husband or t he head of his fam ily undertakes to give t o t he head of the prospective wife's fam ily in considerat ion of a cust om ary m arriage;
'M inist er' m eans t he Minist er of Hom e Affairs;
'prescribed' m eans prescribed by regulation m ade under section 11;
RECOGNITION OF CUSTOMARY MARRIAGES ACT 120 OF 1998
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'regist ering officer' m eans any person appoint ed as regist ering officer for purposes of t his Act by t he Minist er or an officer act ing under t he Minist er's writ t en aut horizat ion;
't his Act ' includes the regulations; and
't radit ional leader' m eans any person who in term s of custom ary law or any other law holds a position in a traditional ruling hierarchy. 2 Recognition of custom ary m arriages
(1) A m arriage which is a valid m arriage at custom ary law and existing at the com m encem ent of t his Act is for all purposes recognised as a m arriage.
( 2) A custom ary m arriage ent ered int o aft er t he com m encem ent of t his Act , which com plies wit h t he requirem ent s of t his Act, is for all purposes recognised as a m arriage.
( 3) I f a person is a spouse in m ore than one custom ary m arriage, all valid custom ary m arriages ent ered int o before t he com m encem ent of t his Act are for all purposes recognised as m arriages.
( 4) I f a person is a spouse in m ore than one custom ary m arriage, all such m arriages ent ered int o after t he com m encem ent of t his Act , which com ply wit h t he provisions of this Act, are for all purposes recognised as m arriages. 3 Requirem ents for validity of custom ary m arriages
( 1) For a cust om ary m arr iage ent ered int o aft er t he com m encem ent of t his Act t o be valid-
( a) t he prospect ive spouses-
( i) m ust both be above the age of 18 years; and
( ii) m ust bot h consent t o be m arried to each other under custom ary law; and
(b) the m arriage m ust be negotiated and entered into or celebrated in accordance wit h cust om ary law.
( 2) Save as provided in section 10 ( 1) , no spouse in a custom ary m arriage shall be com pet ent t o ent er int o a m arriage under t he Marriage Act , 1961 ( Act 25 of 1961 ) , during the subsist ence of such cust om ary m arriage.
( 3) ( a) I f either of the prospective spouses is a m inor, bot h his or her parent s, or if he or she has no parents, his or her legal guardian, m ust consent to the m arriage.
( b) I f the consent of the parent or legal guardian cannot be obtained, section 25 of t he Marriage Act , 1961, applies.
( 4) ( a) Despite subsection ( 1) ( a) ( i) , t he Minist er or any officer in the public service aut horised in writ ing theret o by him or her, m ay grant writt en perm ission t o a person under t he age of 18 years t o ent er int o a cust om ary m arriage if t he Minist er or t he said officer considers such m arriage desirable and in t he interest s of t he parties in quest ion.
( b) Such perm ission shall not relieve t he part ies to t he proposed m arriage from t he obligation to com ply with all the other requirem ents prescribed by law.
( c) I f a person under the age of 18 years has ent ered int o a custom ary m arriage wit hout t he writ t en perm ission of t he Minist er or t he relevant officer, t he Minist er or t he officer m ay, if he or she considers t he m arriage t o be desirable and in t he int erests of the parties in question, and if the m arriage was in every other respect in accordance
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with t his Act, declare the m arriage in writ ing t o be a valid cust om ary m arriage.
( 5) Subj ect t o subsect ion ( 4) , sect ion 24A of t he Marriage Act , 1961, applies t o t he custom ary m arriage of a m inor ent ered into wit hout t he consent of a parent, guardian, com m issioner of child welfare or a j udge, as t he case m ay be.
( 6) The prohibit ion of a cust om ary m arriage bet ween persons on account of t heir relationship by blood or affinity is determ ined by custom ary law. 4 Registration of custom ary m arriages
( 1) The spouses of a cust om ary m arriage have a dut y t o ensure t hat t heir m arriage is r egist er ed.
( 2) Eit her spouse m ay apply t o t he regist ering officer in t he prescribed form for t he registration of his or her custom ary m arriage and m ust furnish the registering officer with the prescribed inform ation and any additional inform ation which the registering officer m ay require in order to sat isfy him self or herself as t o the exist ence of t he m arriage.
( 3) A custom ary m arriage( a) ent ered int o before t he com m encem ent of t his Act, and which is not regist ered in t erm s of any ot her law, m ust be registered within a period of 12 m onths after that com m encem ent or wit hin such longer period * as t he Minist er m ay from t im e t o t im e prescribe by not ice in t he Gazet t e ; or
(b) entered into after the com m encem ent of this Act, m ust be registered within a period of three m onths after the conclusion of the m arriage or within such longer period * as t he Minister m ay from t im e t o t im e prescribe by not ice in t he Gazet t e .
( 4) (a) A registering officer m ust, if satisfied that the spouses concluded a valid custom ary m arriage, register the m arriage by recording t he identit y of t he spouses, t he date of the m arriage, any lobolo agreed to and any other particulars prescribed.
( b) The regist ering officer m ust issue t o t he spouses a cert ificat e of regist rat ion, bearing the prescribed particulars.
( 5) ( a) I f for any reason a custom ary m arriage is not regist ered, any person who sat isfies a registering officer t hat he or she has a sufficient interest in t he m at t er m ay apply t o t he regist ering officer in t he prescribed m anner t o enquire int o t he exist ence of the marriage.
( b) I f the registering officer is satisfied that a valid custom ary m arriage exists or existed between the spouses, he or she m ust register the m arriage and issue a certificate of registrat ion as cont em plat ed in subsection ( 4) .
( 6) I f a registering officer is not satisfied that a valid custom ary m arriage was entered into by the spouses, he or she m ust refuse to register the m arriage.
( 7) A court m ay, upon application m ade to that court and upon investigation instituted by that court, order-
(a) the registration of any custom ary m arriage; or
( b) t he cancellat ion or rect ificat ion of any registration of a custom ary m arriage effected by a registering officer.
( 8) A certificate of registration of a custom ary m arriage issued under this section or
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any other law providing for the registration of custom ary m arriages constitutes prim a facie proof of t he exist ence of the cust om ary m arriage and of t he part iculars cont ained in t he certificate.
( 9) Failure t o regist er a cust om ary m arriage does not affect t he validit y of t hat m arriage.
5 Determ ination of age of m inor
( 1) A regist ering officer m ay, in respect of a person who allegedly is a m inor, accept a birth certificate, an identity docum ent, a sworn statem ent of a parent or relative of the m inor or such other evidence as the registering officer deem s appropriate as proof of that person's age.
( 2) I f t he age of a person who allegedly is a m inor is uncertain or is in dispute, and that person's age is relevant for purposes of t his Act , t he regist ering officer m ay in the prescribed m anner subm it the m at ter t o a m agist rat e's court established in t erm s of t he Magist rat es' Court Act , 1944 ( Act 32 of 1944 ) , which m ust det erm ine t he person's age and issue the prescribed certificate in regard thereto, which constitutes proof of the person's age.
6 Equal st at us and capacit y of spouses
A wife in a cust om ary m arriage has, on the basis of equalit y wit h her husband and subj ect to t he m at rim onial propert y system governing the m arriage, full status and capacit y, including the capacit y t o acquire asset s and t o dispose of t hem , t o ent er int o contracts and to litigate, in addition to any rights and powers that she m ight have at custom ary law.
7 Proprietary consequences of custom ary m arriages and contractual capacity of spouses
( 1) The propriet ary consequences of a cust om ary m arriage ent ered int o before t he com m encem ent of t his Act cont inue to be governed by custom ary law.
( 2) A custom ary m arriage ent ered int o aft er t he com m encem ent of t his Act in which a spouse is not a part ner in any ot her exist ing cust om ary m arriage, is a m arriage in com m unity of propert y and of profit and loss bet ween the spouses, unless such consequences are specifically excluded by the spouses in an ant enupt ial contract which regulates the m atrim onial property syst em of their m arriage.
( 3) Chapt er I I I and sect ions 18, 19, 20 and 24 of Chapt er I V of t he Mat rim onial Propert y Act , 1984 ( Act 88 of 1984 ) , apply in respect of any cust om ary m arriage which is in com m unity of propert y as contem plated in subsection ( 2) .
( 4) ( a) Spouses in a cust om ary m arriage entered int o before t he com m encem ent of this Act m ay apply t o a court j oint ly for leave t o change t he m atrim onial property syst em which applies to their m arriage or m arriages and the court m ay, if satisfied that-
( i) t here are sound reasons for t he proposed change;
(ii) sufficient written notice of the proposed change has been given to all credit ors of t he spouses for am ount s exceeding R500 or such am ount as m ay be det erm ined by t he Minist er of Just ice by not ice in t he Gazet t e ; and
( iii) no other person will be prej udiced by the proposed change,
order that t he m atrim onial property syst em applicable to such m arriage or m arriages will no longer apply and authorise the parties to such m arriage or m arriages to enter into a written contract in term s of which the future m at rim onial propert y system of t heir
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m arriage or m arriages will be regulated on conditions determ ined by the court.
( b) I n the case of a husband who is a spouse in m ore t han one cust om ary m arriage, all persons having a sufficient interest in the m atter, and in particular the applicant's exist ing spouse or spouses, m ust be j oined in t he proceedings.
( 5) Sect ion 21 of t he Mat rim onial Propert y Act , 1984 ( Act 88 of 1984 ) is applicable to a custom ary m arriage entered into after the com m encem ent of this Act in which the husband does not have m ore than one spouse.
( 6) A husband in a custom ary m arriage who wishes to enter into a further custom ary m arriage with another wom an after the com m encem ent of this Act m ust m ake an application to the court to approve a written contract which will regulate the future m atrim onial property system of his m arriages .
( 7) When considering the application in term s of subsection 6(a) the court m ust-
( i) in t he case of a m arriage which is in com m unit y of propert y or which is subj ect to the accrual system -
( aa) t erm inate t he m atrim onial property syst em which is applicable to the m arriage; and
( bb) effect a division of the m atrim onial property; ( ii) ensure an equitable distribution of the property; and
( iii) take into account all the relevant circum stances of the fam ily groups which would be affected if the application is granted;
(b) the court m ay-
( i) allow further am endm ents t o t he t erm s of the cont ract ;
( ii) grant t he order subj ect to any condit ion it m ay deem j ust ; or
( iii) refuse the application if in its opinion the interests of any of the parties involved would not be sufficiently safeguarded by m eans of t he proposed contract .
( 8) All persons having a sufficient int erest in the m at ter, and in part icular t he applicant 's exist ing spouse or spouses and his prospect ive spouse, m ust be j oined in the proceedings instit ut ed in term s of subsect ion ( 6) .
( 9) I f a court grants an application cont em plat ed in subsection ( 4) or ( 6) , t he regist rar or clerk of the court , as the case m ay be, m ust furnish each spouse wit h an order of t he court including a cert ified copy of such contract and m ust cause such order and a certified copy of such cont ract t o be sent to each registrar of deeds of the area in which the court is situated. 8 Dissolution of custom ary m arriages
( 1) A custom ary m arriage m ay only be dissolved by a court by a decree of divorce on the ground of the irretrievable breakdown of the m arriage.
( 2) A court m ay grant a decree of divorce on the ground of the irretrievable breakdown of a m arriage if it is satisfied that the m arriage relationship between the parties t o t he m arriage has reached such a st at e of disintegration t hat t here is no reasonable prospect of the restoration of a norm al m arriage relationship between them .
( 3) The Mediat ion in Cert ain Divorce Mat t ers Act , 1987 ( Act 24 of 1987 ) and sect ion 6 of t he Divorce Act, 1979 ( Act 70 of 1979 ) , apply t o the dissolution of a custom ary
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