This is our last discussion relating to the different typesof marriages recognised in South Africa as well asrelationships accorded the same status and benefits as a marriage in 2019. In this article we will be discussing customary marriages and all forms of unions accorded the same status and benefits as a marriage. The goal is to ensure that you are not only informed of the law, but ultimately, you know your rights if you are married or contemplating to get married or enter into a union of similar status and benefits as a marriage. A customary marriage may best be described as a marriage entered in accordance with the custom and practices of the indigenous people of SA. Notwithstanding the above, the statute – the Recognition of Customary Marriages Act 120 of 1998 – dealing with the recognition of customary marriages states that the parties to a customary marriage must be 18 years old; they must consent to get married according to customary law; the marriage must be entered and negotiated or celebratedin accordance with customary law.
It is interesting to note that the statute does not mention payment of lobola or dictate the manner in which celebration of a customary marriage should take place.It is appropriate for the legislature to do so as the indigenous groups of South Africa are many and havediverse customs and practices. We live in a society that is constantly changing and developing. Accordingly, no custom of any group is static. However, from the caselaws – court decisions – we notice that a common factor to proving the existence of a customary marriage is payment of lobola but the Courts have said that it need not be paid in full. Furthermore, the issue of celebration of customary marriage must be proved. The absence of the above is fatal in proving the existence of a customary marriage and in many reported cases has served as a leeway for the groom and/or his family to argue against the existence of a customary marriageespecially once the relationship between the parties has broken down. A customary marriage which is entered into by a couple to the exclusion of others is deemed to have the same effect, rights and obligations, as a marriage in community of property. However, where the husband takes a second wife, without entering into a contract which requires the oversight of the court for purposes of regulating his customary marriages, the customary marriage with the second wife is deemed to be a marriage out of community excluding accrual.
Lastly, the law also accords other unions similar status and benefits as a marriage. This is the position when coming to same sex unions concluded in accordance with the Civil Union Act (the ‘Act’), and to some extent religious marriages concluded in accordance with Islamic rites, Hindu rites and Jewish rites in South Africa. Parties who are in a non-polygamous same sex relationship who wish to enjoy and have the same status and benefits as a married couple must have their union solemnised in terms of the Act, where after they areknown as civil partners. A civil partnership may be in community of property or out of community of property with accrual or excluding accrual as is the case in civil marriages. The requirements to enter into a civil partnership are the same as those mentioned for a civil marriage. Currently there is no legal framework dealing with religious marriages and because of this aspect,parties to such marriages are vulnerable to abuse as they enjoy little protection before the law, unless they also conclude a civil marriage with each other. For example, a husband in any of the above religious marriages may enter into a second marriage without his wife’s consent or withhold the granting of a divorce in terms of the prescripts of their religion. It is for this reason that many describe religious marriages as putative marriages – although they are binding in the context of the parties’ religion, they offer little protection to those involved in them save for maintenance claim, and inheritance claim in case of a spouse dying without a will.
