With the arrival of a new law called the Recognition of Customary Marriages Act (RCMA) in November 2000, South Africans in customary or traditional marriages were finally given all the same protections as those enjoyed by people in civil marriages.
The RCMA recognises customary marriages from before the new law came into effect, including those that were not recognised under Apartheid law. It also provides a set of rules for customary marriages entered into after November 2000.
According to the law, your customary marriage is recognised if:
• You and your spouse are both older than 18;
• You have both agreed to be married under customary law;
• You negotiated and celebrated your marriage following the rules set out in customary law. Even though the husband does not need pay to Lobola for the marriage to be recognised by the law, payment of Lobola helps to show that you followed the traditions of customary marriage.
If you are married under customary law, you should register your marriage with the Department of Home Affairs. If the husband has only one wife, the law will recognise the traditional law marriage whether it has been registered or not. But if the husband takes a second wife after the RCMA, it will cancel his first marriage.
Customary Marriages and Community of Property
The RCMA automatically sees all people in customary marriages as married in community of property. This means that the husband and wife share all property, money, and debts equally.
If you and your partner do not want to be married in community of property, you will have to enter into an ante-nuptial contract before you get married. If you are already married and do not want to be married in community of property, you will have to apply to the High Court to change your status.
The RCMA recognises that the wife has equal rights and status with the husband when it comes to deciding what happens to property they own together. A customary wife is also now allowed to enter into a contract without the permission of the husband.
What if the husband wants to take another wife?
In this case, the husband must enter into a written agreement stating what should happen to the property and how it should be shared among his wives. The husband must apply to the court to approve the written contract. The court will ensure that all the property interests of all wives are protected.
What if a couple wants to enter into a civil union after marriage under customary law?
If the husband has no other wives, you can get married under civil law as well as customary law. However, neither of you will be able to enter into customary marriages with anyone else while you are married under civil law.
With the RCMA, Government has helped to ensure that the rights of people married under customary law are protected. It especially protects the rights of women while also protecting traditional practices.
People married under customary law must learn about how it differs from civil marriage so that they are aware of all their rights and responsibilities.
Read more about choosing a marriage contract before your big day.
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