In South Africa, we have the Recognition of Customary Marriages Act 120 of 1998, which regulates African customary marriages. Note that this Act does not cover customary religious marriages like Hindu or Muslim marriages.
According to Section 3 of the Act, the requirements for the validity of a customary marriage are:
- The prospective spouses must both be over the age of 18 years;
- They must both consent to be married to each other under customary law; and
- The marriage must be negotiated and entered into or celebrated in accordance with customary law.
Section 4 of the Act also provides that a customary marriage must be registered within a period of three months after the customary wedding took place.
In terms of Section 7 of the Act, the proprietary consequences of a registered customary marriage is in community of property, unless the spouses in the union registered an antenuptial contract, in which case, the marriage will be recognized as being out of community of property, with or without the application of the accrual system.
What happens in the case where spouses in a customary union do not register their marriage?
It is particularly problematic when the spouses in a customary marriage want to separate or divorce, and they cannot reach an agreement on the division of the assets.
It could mean that spouses can lose their right to any of the assets, simply because their marriage was not registered. It is therefore advisable that spouses register their customary marriage with the Department of Home Affairs to regulate ownership of assets.
Traditionally, African customary marriages can recognize more than one spouse. Subsequent customary marriages must similarly comply with Section 3 of the Act. In addition, Section 7 requires that an application must be made to the court to approve a written contract which will regulate the future matrimonial property system.
In the case of Ngwenyama v Mayelane & another (474/11) [2012] ZASCA 94, the deceased entered into a second customary marriage, which was not registered. The Court held that the fact that the marriage was unregistered does not invalidate the marriage, but that it would be one out of community of property.
In the estate planning and Will drafting discussion, one needs to be familiar with the various pieces of legislation in order to best assist our clients. It is, therefore, important to deal with a professional in the drafting of a Will. Consult a PPS Fiduciary Specialist or visit the PPS website for more information.
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