Recognition of Customary Marriages Act

2 DESEMBER 1998 No. 19539 OFFICE OF THE PRESIDENT KANTOOR VAN DIE PRESIDEN-I No. 1553.

2 December 1998 No 1553.

2 Dcsemtxl- I c)‘JS It IS hereby notified following Act which I II formation:- thal Ihe President has assented is hereby published to the for general Ilicrby word bekend gcmaak kcur~ng geheg het aan die ondcrstaande We1 wal hicrby al~emenz inligting gepubliseer word:- Jat die Presider11 sy :occi- [cl No. 120 of 1998: Recognition of Customary Marriages Act. NO. I20 van 1998: Wet op Erkenning van Gebruiklike Huwe- 1998. like, 1998. 2 No. 1953’) GOVERNMENT GAZETTE.

2 DECEMBER 19Y8 Act No. 120. 199X RECOGNITION OF CUSTOhlAR1 M,ZRRIAGES ACT, IYOX GENERAL EXPLANATORY NOTE: Words underlined with a solid exisling enactments. line indicate insertions in { Eng/i.sh text signed bj, the President.) (Asseuted IO 20 No\~rrnber 1998.) ACT for a valid customary marriage; for the recognition To make provision requirements customary marriages; customary marriages; marriages dissolution of customary marriages; repeal certain provisions of certain therewith. to provide to regulate the capacity and of customary marriages; to specify the registration to regulate for the equal status and capacity of spouses the of in the proprietary consequences of customary of spouses of such marriages; to regulate to provide laws; and to provide for the making of regulations; for matters connected the to B E IT ENACTED follows:- Definitions h) the Parliament of the Republic of South Africa. as

1. In this Act. unless the context otherwise indicates- (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) 5 (ii) observed concluded a marriage traditionally and usages the property the customs law” means in accordance with “court” means a High Court of South Africa. or a family court established under any la\b. and for purposes of section 8, a Divorce Court established in terms of section 10 of the Administration Amendment Act. 1929 (Act No. 9 of 1929); (iv) “customary among the indigenous African peoples of South Africa and which form part of 10 the culture of those peoples; “customary marriage” means customary law; (i) in cash or in kind, whether known as lobolo, “lobolo” means bngadi, bohrrli. .wm, er?m%eka or by any other name, which a prospective husband or the head of his family undertakes to give to the head of the prospective wife’s family customary marriage; “Minister” means the Minister of Home Affairs; (vi) “prescribed” means prescribed by regulation made under section 11; (ix) “registering purposes of this Act by the Minister or an officer acting under the Minister’s written authorization; “this Act” includes “traditional other law holds a position leader” means any person who in terms of customary (viii) officer” means any person appointed as registering officer for thcrka. ikhazi, nqtrdi, ruling hierarchy. law or any 25 in consideration the regulations; in a traditional (iii) and lumafo, of a (vii) (v) 20 IS 5 IO IS ‘I iio. 19539 C;OVt-.I(NMENTGAZETTE.

2 DECEMBER 1998 Act No. 120, 1998 RECOGNITION OF CUSTOMAKY hlARRlAGES ACT. 1998 Recognition of customary marriages 2. ( I ) A marriage which is a valid mar-riage at customary law and existing at the cOllltllellcetnellt of this Act is for all purposes rcco~n~aed as a marriage. (2) A customary marriage entered of this Act. which complies with the requirements of this Act. is !OI- all purposes recognised as a marriage. (3) If a person is a spouse in more than one customary marriage, all valid customary of this Act are for all purposes into after the commencement the commencement into before marriages recognised as marriages. entered (4) If a person is a spouse in more than one customary marriage, all such marriages of this Act, which comply with the provisions of into after the commencement entered this Act. are for all purposes recognised as marriages. Requirements for validity of customary marriages 3. (1) For a customary marriage entered into aftet- the commencement of this Act to be valid- (N) (/I) competent during spouscs- the prospective (i) must both be above the age of I8 years; and (ii) must both consent the marriage must be negotiated and entered with customary to be married law. in section to each other under customary into or celebrated law: and in accordance (2) Save as provided lO( I). no spouse in a customary marriage shall be 20 to enter into a marriage under the Marriage Act, 1961 (Act No. 25 of 1961) the subsistence of such customary marriage. (3) (a) If either of the prospective spouses is a minor, both his or her parents, or if he or she has no parents, his or her legal guardian, must consent to the marriage. lh) If the consent of the parent or legal guardian cannot be obtained, section 25 of the 25 Marriage Act. 1961. applies. 1.4) ((I) Despite subsection in writing ( I )(o](I). the Minister or any ofiicer in the public service to a person authorised under the age of I8 years to enter into a customary marriage if the Minister or the said oficer considers such marriage desirable and in the interests of the parties in question. from the thereto 111, him OI- her. may grant written permission shall not relie\~e the parties to the proposed marriage Cbj Such permission obligation to comply with all the other trequircments prescribed by law. (c) If a pet-son under the age of 18 ycn~-s has entered into a customafy.nlal-riage without the written permission of the Minister or the relevant offtcer, the Muuster or the officer may. if he or she considers to be desirable and in the interests of the parties in question, and if the marriage was in every other respect in accordance with this Act, declare to be a valid customary marriage. the marriage the marriage in writing (5) Subject to subsection (4). section 34A of the Marriage Act. 1961. applies to the customary marriage of a minor entered commissioner of child welfare or a judge. as the case may be. into without the consent of a parent. guardian, (6) The prohibition of a customary marriage between persons on account of their relationship by blood or affinity is determined by customary law. Registration of customary marriages 4. ( I ) The spouses of a customary marriage have a duty to ensure that their marriage is registered. (2) Either spouse may apply to the registerin, 0 officer in the prescribed registration of his or her customary marriage and must furnish with the prescribed officer may require marriage. information in order to satisfy himself or herself as to the existence of the and any additional form for the the registering oificer information which the registering (3) A customary marriage- (n) entered into before the commencement of this Act, and which is not registered in terms of any other law, must be registered within a period of I2 months after 30 35 40 4s SO 6 No. 19539 GOVERNMENT GAZETTE,

2 DECEMBER 1998 Act No. 120, 1998 RECOGNITION OF CUSTOMARY MARRIAGES ACT. 1998 (b) or within such longer period as the Minister may from that commencement time to time prescribe by notice of this Act, must be registered within a entered into after the commencement period of three months after the conclusion of the marriage or within such longer period as the Minister may from time to time prescribe by notice in the Gazerre. in the Gazetre; or 5 (4) (n) A registering officer must, if satisfied that the spouses concluded register the marriage by recording the identity of the spouses, a valid the customary marriage, date of the marriage, any lobolo agreed (b) The registering officer must to and any other particulars prescribed. issue to the spouses a certificate of registration, IO bearing the prescribed particulars. (5) (a) If for any reason a customary marriage satisfies a registering officer that he or she has a sufficient apply to the registering officer in the prescribed manner the marriage. is not registered, any person who in the matter may into the existence of to enquire interest (6) If the registering officer is satisfied that a valid customary marriage exists or the spouses, he or she must register the marriage and issue a certificate existed between of registration as contemplated (6) If a registering officer is not satisfied in subsection (4). that a valid customary marriage was entered into by the spouses, he or she must refuse to register the marriage. (7) A court may, upon application made to that court and upon investigation instituted by that court, order- (a) (b) the registration of any customary marriage; or the cancellation or rectification effected by a registering officer. of any registration of a customary marriage (8) A certificate of registration of a customary marriage issued under this section or for the registration of customary marriages constitutes print proof of the existence of the customary marriage and of the particulars contained 15 20 2.5 any other law providing @ie In the certificate. (9) Failure to register a customary marriage does not affect the validity of that 30 marriage. Determination of age of minor 5. (1) A registering officer may, in respect of a person who allegedly a birth certificate, an identity document. minor or such other evidence as the registering officer deems appropriate as proof of that 35 person’s age. is a minor, accept a sworn statement of a parent or relative of the (2) If the age of a person who allegedly person’s age is relevant prescribed manner submit the matter to a magistrate’s court established Magistrates’ Court Act, 1944 (Act No. 32 of 1944) which must determine age and issue the prescribed certificate person’s age. is a minor is uncertain or is in dispute, and that officer may in the in terms of the the person’s in regard thereto, which constitutes proof of the for purposes of this Act, the registering 40 Equal status and capacity of spouses

6. A wife in a customary marriage has, on the basis of equality with her husband and to the matrimonial subject capacity, contracts and to litigate, customary including law. property system governing the marriage, full status and 45 the capacity to acquire assets and to dispose of them, to enter into that she might have at to any rights and powers in addition Proprietary spouses consequences of customary marriages and contractual capacity of 50 7. ( 1) The proprietary consequences commencement of this Act continue (2) A customary mania&e entered to be governed by customary into after the commencement of a customary marriage entered law. of this Act in which is a marriage in the spouses, unless such 55 in any other existing customary marriage. and of profit and into before the loss between is not a partner of property are specitically excluded by the spouses in an antenuptial contract which :I spouse community consequences regulates the matrimonial property system of their marriage. s so. 195.39 GOVERNMEN-I’ GAZE-I-rE.

3 DECEMBER 1998 ~\rt No. 120, 1998 RECOGNITION OF CUSTOMARY MARRIAGES ACT. 19% (31 Chapter III and sections 18 , 19. 20 and 24 of Chapter IV of the Matrimonial f’~.opcrty Act. I Y&l (Act No. 88 of 19&I), apply in respect of any customary marriage \\hich is in community of property as contemplated in a customary marriage entered of for leave to change the matrimonial property system in subsection into before the commencement (2). (4) (trj Spouses thra Act may apply to a court jointly u hich applies (i) (ii) to their marriage or marriages and the court may, if satistied that- there are sound reasons for the proposed change; suficient written notice of the proposed change has been given to all creditors exceeding R500 or such amount as may be of the spouses determined by the Minister of Justice by notice in the Grrzerte; and for a~nountx (iii) no other person will bc prejudiced by the proposed change, order that the matrimonial property system applicable no longer apply and authorise written contract marriage or marriages will be regulated on conditions determined by the court. to such marriage or marriages will to enter into a system of their to such marriage or marriages the future matrimonial in terms of which the parties property (6) III the case of a husband who is a spouse in more than one customary marriage, ali the applicant’s in the matter, and in particular interest persons having a sufficient existing spouse or spouses, must be joined (5) Section 21 of the Matrimonial applicable which the husband does not have more than one spouse. to a customary marriage entered in the proceedings. Property Act, 1984 (Act No.88 of 1984) is of this Act in into after the commencement (6) A husband in a customary marriage who wishes to enter into a further customary marriage with another woman after application to the court matrimonial property system of his marriages. the commencement to approve a written contract which will regulate of this Act must make an the future (7) When considering the application in terms of subsection 6- (u) (b) the court must- (i) in the case of a marriage which is in community of pr-operty or which is subject (tra) terminate to the accrual system- the matrimonial property system which is applicable to the marriag,e : and (ii) (iii) fbh) effect a dtvrsion of the rnatr-imonial property: ensure an equitable distribution take into account a11 the rclcvant circumstances which would be affected if the application of the property; and is granted; of the family groups the court may- (i) allow further amendments (ii) grant the order subject (iii) to any condition if in its opinion to the terms of the contract; it may deem just: or refuse the application the interests of any of the parties involved would not be sufficiently safeguarded by means of the proposed contract. (8) All persons having a sufficient interest in the matter, and in particular applicant’s existing spouse or spouses and his prospective spouse. must be joined proceedings instituted (6). (9) If a court grants an application contemplated in terms of subsection (4) or (6), the registrar or clerk of the court, as the case may be, must furnish each spouse with an order of the a certified copy of such contract and must cause such order and a court certified copy of such contract to be sent to each registrar of deeds of the area in which the court is situated. in subsection including the in the Iksolution of customary marriages 8. ( I ) A customary marriage may only be dissolved by a court by a decree of divorce on the ground of the irretrievable breakdown of the marriage. (2) Acourt may grant a decree of divorce on the ground of the irretrievable breakdown of a mart-iage if it is satisfied marriage has reached such a state of disintegration of the restoration of a normal marriage that the marriage relationship between them. relationship between the parties to the that there is no reasonable prospect 5 IO 15 20 25 30 35 40 45 50 55 IO No. 19539 GOVERNMENT GAZETTE, 2 DECEMBER 1998 Act No. 120, 1998 RECOGNITION OF CUSTOMARY MARRIAGES ACT, I 998 (3) The Mediation in Certain Divorce Matters Act, 1987 (Act No. 24 of 1987) and section 6 of the Divorce Act, 1979 (Act No. 70 of 1979), apply to the dissolution of a customary marriage. (4) A court granting a decree for the dissolution take into consideration of a customary marriage- has the powers contemplated in sections 7, 8, 9 and 10 of the Divorce Act. 1979, and section 24( I ) of the Matrimonial Property Act, 1984 (Act No. 88 of 1984); must, in the case of a husband who is a spouse in more than one customary marriage, any contract, all relevant agreement or order made in terms of section 7(4), (S), (6) or (7) and must make any equitable order that it deems just; may order that any person who in the court’s opinion has a sufficient in the matter be joined may make an order with regard to the custody or guardianship child of the marriage; and may, when making an order for the payment of maintenance, any provision or arrangement made in accordance with customary in the proceedings; take into account factors including of any minor interest law. (5) Nothing in this section may be construed as limiting including any traditional leader, the role, recognised in the mediation, in in law, of any dispute or matter arising prior to the dissolution law, of any person, customary accordance with customary of a customary marriage by a court. Age of majority

9. Despite the rules of customary law, the age of majority of any person is determined in accordance with the Age of Majority Act, 1972 (Act No. 57 of 1972). Change of marriage system 10. (1) A man and a woman between whom a customary marriage subsists are competent to contract a marriage with each other under the Marriage Act, 196 1 (Act No. 25 of 1961). if neither of them is a spouse in a subsisting customary marriage with any other person. (2) When a marriage of property in community specifically excluded property system of their marriage. is concluded as contemplated and of profit and in subsection (1) the marriage loss unless such consequences is are in an antenuptial contract which regulates the matrimonial (3) Chapter III and sections 18, 19, 20 and 24 of Chapter IV of the Matrimonial Property Act, 1984 (Act No. 88 of 1984), apply in respect of any marriage which is in community of property as contemplated in subsection (2). (4) Despite subsection (1), no spouse of a marriage entered Act, 1961, is, during the subsistence of such marriage, competent marriage. into under the Marriage to enter into any other Regulations 11. (1) The Minister of Justice, in consultation with the Minister, may make regulations- (a) relating (i) (ii) (iii) (iv) (v) in respect of the registration to be furnished of a customary in which a registering officer must satisfy himself or herself to be complied with and the information officer to- the requirements to a registering marriage; the manner as to the existence or the validity of a customary marriage; the manner any traditional participate customary marriage; the form and content of certificates, notices, affidavits and declarations required the custody, certification, in which any person in the proof of the existence or in the registration for the purposes of this Act; leader may of any reproduction and implementation, rectification, including 5 10 15 20 25 30 35 40 45 50 I? No. 19539 GOVERNMENT GAZETTE, -J DECEMBER 1998 Act No. 120, 1998 RECOGNITION OFCUSTOMARY MARRIAGES ACT. 1998 (vi) (vii) relating to the registration disposal of any document marriages or of any document prescribed any matter that is required or permitted Act; and any other matter which effective registration of customary marriages or the efficient administra- tion of this Act; and in terms of the regulations; is necessary or expedient to be prescribed to provide of customary in terms of this for the 5 (‘1,) prescribing the fees payable marriage and the issuing of any certificate (2) Any regulation made under subsection in respect of the registration of a customary in respect thereof. (1) must, before publication thereof in the 10 Gazette, be submitted to Parliament. regulation made under for the State or regulations made under subsection (3) Any expenditure consultation with the Minister of Finance. subsection (1) which may result in financial (l)(6) must be made in (4) Any regulation made under subsection a provision contravenes and on conviction be liable to a fine or to imprisonment year. thereof or fails to comply (1) may provide that any person who therewith shall be guilty of an offence for a period not exceeding one Amendment of laws 12. (I) Section 17 of the Deeds Registries Act. 1937 (Act No. 47 of 1937), is hereby (2) of the following (h) of subsection for paragraph amended by the substitution paragraph: “(/I) where the marriage concerned or any part thereof, state whether community governed by customary Marriages Act, 1998;“. of property or whether law in the marriage was contracted is governed by the law in force in the Republic in or out of is system of Customq the matrimonial terms of the Recognition property (2) Section 45&s of the Deeds Registries Act, 1937, is hereby amended- ((1) by the substitution for paragraph (h) of subsection (I) of the following paragraph: “(6) forms or formed an asset in a joint estate, and a court has made an order, or has made an order and given an authorization, under section 20 or 2 l(1) of the Matrimonial Property Act, 1984 (Act No. 88 of 1984), or under section 7 of rhe Recognition Marriages Act, 1998, as the case may be, in terms of which and property, Cb) by the substitution lease or bond is awarded for paragraph to one of the spouses,“; (IA) of the following (b) of subsection of Customary the paragraph: “(b) forms or formed an asset in a joint estate and a court has made an order, or has made an order and given an authorization under section 20 or 21( 1) of the Matrimonial Property Act, 1984 (Act No. 88 of 1984), or under Marriages Act, 1998, as the case may be, in terms of which the property, shares.“. to both spouses the Recognition lease or bond of Customary in undivided is awarded section 7 of 15 20 25 30 35 40 45 Repeal of laws

13. The laws mentioned third column of the Schedule. in the Schedule are hereby repealed to the extent set out in the Short title and commencement

14. This Act is called the Recognition of Customary Marriages Act, 1998, and comes 50 into operation on a date fixed by the President by proclamation in the Gazette. 14 No. 19539 GOVERNMENT GAZETTE, 2 DECEMBER I998 Acl No. 120,1998 RECOGNITION OF CUSTOMARY MARRIAGES ACT. 1998 SCHEDULE REPEAL OF LAWS (Section 12) No. and year of Law Short title Eden1 of Repeal Act No. 38 of 1927 Black Administration Act. 1927 Sections 11(3)(b), 22( 1) to (5) and 22 his Act No. 21 of 1978 Transkei Marriage Act, 1978 Sections 3. 29, 37, 38 and 39 (Transkei) Act No. 16 of 1985 KwaZulu Act on the Code of Sections 22 and 27(3) Proclamation No. RI5 1 of 1987 Natal Code of Zulu Law, 1987 Section 27(3) Zulu Law, 1985