WITH strong ties to their culture, S’thembile and Themba decided to have a traditional wedding.
The community was witness to their merger, as is customary in their culture.
Soon after the ceremony, S’thembile heard talk that her marriage to Themba may not be legal, according to South African law.
Azikhiphi!
Unsure whether her marriage was valid, S’thembile sought legal answers.
What does the law say?
The Recognition of Customary Marriages Act 120 of 1998 provides that customary or traditional marriages are recognised as valid if they comply with the act.
Traditional marriages are recognised under customary law, if they comply with the following requirements:
) Both parties are above the age of 18.
) Both parties consent to marriage under customary law.
) The marriage is negotiated, celebrated and entered into, according to customary law.
) If ilobolo is part of the custom and is paid, it proves the marriage was negotiated according to custom (not a necessary requirement for validity).
Should S’thembile register the marriage?
If the marriage is not registered, it doesn’t mean it’s not recognised by the law. If the marriage complies with the above requirements, it is considered valid.
But an unregistered marriage can be invalidated if the husband marries a second wife.
Therefore, it is important that all customary marriages are registered at the Department of Home Affairs within three months of the marriage.
The registration is proof that a customary marriage exists.
Can S’thembile enter a civil marriage?
If S’thembile’s husband doesn’t have any other wives, they can get married under civil law as well as customary law (as has become a norm for many couples).
If you have entered into a civil marriage, neither of you can enter into a customary marriage with anyone else.
Three things Scorpion can do for S’thembile
) Give legal advice on customary and civil law.
) Help her determine whether her marriage is legally valid or not.
) Provide general advice on ante-nuptial contracts.
The way forward
S’thembile now knows her traditional marriage is legally valid.
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