Customary marriages

Hayi bo! Are we married or not?

Most couples know if they are married. They have held a wedding and invited friends and family, often at great expense. Or they have taken two witnesses and visited their local Department of Home Affairs for a simple ceremony. There should be no uncertainty about the answer to this question! However, we recently had a client who was sure he was not married to his girlfriend of many years, while she maintained they were married in terms of the Recognition of Customary Marriages Act 120 of 1998. This law recognises the validity of African customary marriages, provided certain requirements are met.

Eviction proceedings

Their relationship turned sour after living together in his flat for a number of years. He decided to end the relationship and asked her to leave the flat. She refused, and he brought eviction proceedings against her. She opposed the eviction on the grounds that they had been married in accordance with Xhosa custom.

She then proceeded to the High Court to apply for an order declaring their relationship a valid marriage in terms Section 3 of the Recognition of Customary Marriages Act 120 of 1998. According to the Act, for the alleged marriage to be valid, the prospective spouses, at the time of the marriage, must both have been above the age of 18 and must both have consented to be married to each other under customary law. The marriage must have been negotiated and entered into or celebrated in accordance with customary law.

Lack of proof

The woman was not able to prove that the marriage had been negotiated and entered into or celebrated in accordance with relevant customary law. Therefore, she was not entitled to gain financially from the breakdown of the “marriage”.

Registering the customary marriage

Parties married in terms of customary law must register the marriage with an RCMA registration officer within three months of the date of the customary marriage. This removes any uncertainty about the validity of the marriage.

Cohabitation

Conversely, if you are living together as a couple but have chosen not to marry, it is a good idea to draw up a cohabitation agreement. Many people believe that if a couple lives together for a particular length of time, marital rights apply, sometimes called a “common-law” marriage. This is a misconception. There is no such thing as common-law marriage. However, the couple can draft a cohabitation agreement. This is a relatively simple contract that includes details of their assets, property and the financial contributions each partner makes to the joint home. It is valid when ratified by an appointed lawyer.

If the pair in this scenario had had a cohabitation agreement in place, the woman may have been entitled to a share of assets when the relationship ended, regardless of the couple’s marital status. 

SD Law can help

If you are in a customary marriage and are uncertain about its validity, or have any questions about it, Cape Town law firm SD Law can help. We can also help you draw up a cohabitation agreement. Call attorney Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

Further reading:

• Not married – when the inevitable happens
• Common law marriage and living together
• Antenuptial agreement now available to women in customary marriages 

Simon Dippenaar

https://www.sdlaw.co.za

Cape Town attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

View more posts from this author