South African laws changed the lives of many black people who entered into customary marriages after 15 November 2000 for the better. Some might say work still needs to be done in this area, but legislation has made strides to bridge the gaps that were inherent in the Apartheid era.
Before 15 November 2000, black people who entered into customary marriages were subjected to some unfavourable laws especially the treatment of woman, who were subservient to their husbands. They did not have a say in their marriages and they were not able to inherit. Women were regarded as perpetual minors under the tutelage of their husband in terms of section 11(3)(b) of the Black Administration Act (BAA) before it was repealed.
The new Constitution of South Africa brought about the equality clause and changed the lives of women who entered into customary marriages for the better as they were treated as equals. A case in point is the Bhe v Magistrate Khayelitsha 1998 which abolished discrimination on the basis of race, gender, marital status, birth, age etc. for the purposes of succession and also brought a new dispensation whereby husbands and wives were equal in a customary marriage and could deal with the assets of the marriage as equals.
Requirements for a valid customary marriage may be found in the Recognition of Customary Marriages Act 102 of 1998.
After 15 November 2000, Section 3 of the RCMA provides that in order for a customary marriage to be valid it must comply with the following:
a – The prospective spouses –
- must be above the ages of 18 years; and
- must both consent to be married to each other under customary law; and
b – the marriage must be negotiated and entered into or celebrated in accordance with customary law.
Section 4 of the Act allows for registration or non-registration of the marriage. Whether the married couple registers their marriage or not does not affect the validity of the marriage, therefore registration is not a must, however non-registration causes many legal challenges down the line.
In 2015, Statistics SA released figures showing that 3 467 customary marriages were registered and 3 978 in 2016, indicating an upward trend. With these recorded numbers and the uncertainty of the number of unregistered customary marriages, it is important to familiarise yourself with its implications before you enter into one.