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Customary marriages and retirement (manyalo a setso le ho beha meja fatshe) – regulatory compliance and best practice principles

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Overview

This article provides an overview of the Recognition of Customary Marriages Act, 1998.

Many South Africans are married by means of customary law, which sets out the requirements for a customary marriage to be recognised under South African law. For example, for many couples where lobola has been paid, there is a common misconception that the payment of lobola equates to the formalisation or legalisation of the marriage. This can lead to a considerable difference in the way assets are dealt with in the event of a death or divorce etc. This article outlines the requirements for a Customary Marriage to be recognised in law.

(Sengolwa sena se o fa tjhebokakaretso ya Molao wa Kananelo ya Manyalo a Setso, wa 1998 (Recognition of Customary Marriages Act, 1998).

MaAfrika Borwa a mangata a nyalane ka molao wa lenyalo la setso, o tekang ditlhoko bakeng sa lenyalo la setso hore le ananelwe ho ya ka molao wa Afrika Borwa.

Ho etsa mohlala, bakeng sa banyalani ba bangata moo bohadi (lobola) bo lefilweng, ho na le mohopolo o fosahetseng o atileng wa hore tefo ya bohadi e lekana le tlhomamiso kapa kananelo ya molao ya lenyalo leo. Hona ho ka baka pherekano e kgolo ho ya kamoo thepa e sebetswang ka teng haeba e mong wa banyalani a hlokahale kapa ho ka ba le tlhalano, jj. Sengolwa sena se teka ditlhoko bakeng sa hore Lenyalo la Setso le ananelwe ka molao.

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The Recognition of Customary Marriages Act, 1998 (‘the Act’) stipulates the specific requirements for a customary marriage to be recognised under South African law. Customary marriages should also be registered. Customary marriages are in community of property and of profit and loss between the spouses, unless such consequences are specifically excluded by the spouses in an antenuptial contract (before the customary ceremony), which regulates the matrimonial property system of their marriage.

The Recognition of Customary Marriages Act, 1998 makes provision for the following aspects:

  • recognition of customary marriages;
  • to specify the requirements for a valid customary marriage;
  • to regulate the registration of customary marriages;
  • to provide for the equal status and capacity of spouses in customary marriages;
  • to regulate the proprietary consequences of customary marriages and the capacity of spouses of such marriages;
  • to regulate the dissolution of customary marriages.

The recognition of customary marriages includes:

  • A marriage that is a valid marriage at customary law and existing at the commencement of the Act (1998) is for all purposes recorded as a marriage.
  • A customary marriage entered into after the commencement of the Act (1998 onwards), which complies with the requirements of the Act, is for all purposes recognised as a marriage.
  • If a person is a spouse in more than one customary marriage, all valid customary marriages entered into before the commencement of the Act are for all purposes recognised as marriages.
  • If a person is a spouse in more than one customary marriage, all such marriages entered into after the commencement of the Act, which comply with the provisions of the Act are for all purposes recognised as marriages.

The above stipulated requirements for the legal recognition of a customary marriage is critically important – especially the requirement that “the marriage must be negotiated into or celebrated with customary law”. The reason for the importance of this aspect is that customary law will differ from culture to culture across South Africa’s diverse ethnic groups when it comes to marriage celebrations. For each customary marriage to be legally recognised under the Act, the marriage negotiations and celebrations must conform to the customary law requirements.

Registration of customary marriages

The spouses of a customary marriage have a duty to ensure that their marriage is registered. Either spouse may apply to the registering officer in the prescribed form for the registration of their customary marriage and must furnish the registering officer with the prescribed information and any additional information that the registering officer may require in order to satisfy them as to the existence of the marriage. Importantly, while there is a responsibility for spouses of a customary marriage to register their customary marriage, failure to register a customary marriage does not, however, affect the validity of that marriage.

Equal status and capacity of spouses

A wife in a customary marriage has, on the basis of equality with her husband and subject to the matrimonial property system governing the marriage, full status and capacity – including the capacity to acquire assets and to dispose of them – to enter into contracts and to litigate, in addition to any rights and powers that she might have in customary law.

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  • Customary law means the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples.
  • Customary marriage means a marriage concluded in accordance with customary law.
  • Lobola means the property in cash or in kind, whether known as lobolo, bogadi, bohali, xuma, lumalo, takha, ikhazi, magadi, emabheka 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 in consideration of a customary marriage.

3 KEY REQUIREMENTS FOR CUSTOMARY MARRIAGES

For a customary marriage entered into after the commencement of the Recognition of Customary Marriages Act, 1998 to be valid, the prospective spouses:

  1. must both be above the age of I8 years; and
  2. must both consent to be married to each other under customary law; and
  3. the marriage must be negotiated and entered into or celebrated in accordance with customary law.

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Proprietary consequences of customary marriages and contractual capacity of spouses The proprietary consequences of a customary marriage entered into before the commencement of this Act continue to be governed by customary law. A customary marriage entered into after the commencement of this Act in which a spouse is not a partner in any other existing customary marriage, is a marriage in community of property and of profit and loss between the spouses, unless such consequences are specifically excluded by the spouses in an antenuptial contract, which regulates the matrimonial property system of their marriage.

In summary

The Recognition of Customary Marriages Act, 1998 stipulates the requirements for a customary marriage to be recognised under South African law. It furthermore stipulates the need for a customary marriage to be registered, emphasises the equal capacity and status of both spouses under a customary marriage, as well as the proprietary and contracting consequences resulting from customary marriage and the dissolution thereof. Such information is important for retirement fund boards of trustees when considering the distribution of fund death benefits to a spouse and other dependants in the event of the death of the fund member when that member is in a customary marriage.

REFERENCES
Old Mutual | SA Government Gazette

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