Within South Africa, one can enter into a customary marriage or a civil marriage. Both are valid forms of marriage; however, a customary marriage permits polygamy (having multiple partners), whereas a civil marriage requires a monogamous relationship (two parties entering into a union).
The recognition of the Customary Marriage Act was established in order to acknowledge the traditions and customs of certain cultures within South Africa. In order to validate a customary marriage, the union must be entered into in accordance with said traditions and customs.
A Customary Marriage: The Requirements
There are certain requirements that must be adhered to in order for a customary marriage to be valid in the eyes of South African law. These requirements include:
- Both parties must be of legal age: Each of the parties entering into the customary marriage must be 18 years of age or older. If they are under 18 years of age, they must receive consent from their parents or legal guardians.
- Both parties must be competent: Even though a customary marriage does allow for polygamy, the parties entering into the union cannot be blood relatives, as it is illegal to marry one’s blood relatives in South Africa.
- Both parties must provide consent: Those who suffer from a mental illness that prevents them from being of sane mind, or are unable to provide consent will not be able to enter into a customary marriage.
- One cannot enter into a civil and customary marriage simultaneously: If one or both of the parties are part of a civil marriage they may not enter into a customary marriage, as civil unions do not allow for polygamous relationships.
Lobolo/lobola is considered a part of the customary practice when entering into a customary marriage; however, it is not a necessary requirement in order for the marriage to be valid in the eyes of the law. It is possible to register any lobolo/lobola agreements when registering the marriage at the Department of Home Affairs.
The Customary Marriage Act: Before and After 1998
Prior to the Customary Marriage Act of 1998, a wife did not have the power within a customary marriage. She was seen as inferior to her husband and did not have the legal right to own property, obtain credit, or enter into contractual agreements. She also had restricted rights within the court.
Since the Act came into effect, wives with a customary marriage have equal legal rights and power to their husbands. This allows her to request a divorce, own property, enter into contractual agreements, and more.