When does a customary marriage become legal and binding and what is required to register it?

Our firm recently dealt with a matter in which related issues were present and which led me to ask this question for the following reasons:

• The alleged husband claimed that he and his customary partner had never married "properly". He admitted to having paid part of the lobolo (as an indication that he was of the intention to marry) but denied that the remainder of the lobolo had ever been paid and that the marriage had ever been entered into through any ceremony or otherwise. He further indicated that he had even drafted his will and indicated himself therein as being unmarried.
• His alleged wife however contended that they had been properly married and that she had a marriage certificate to show for it.
• However, the document which was used to register the alleged marriage comprised a mere undated faxed copy of a hand written note containing the following information which had been signed by a single witness:
• "An amount of R1000.00 was received by (name of wife's father) for lobola of (name of wife) on 28/03/1999, from (name of husband) the balance being R1 300.00."

In terms of the Recognition of Customary Marriages Act 120 of 1998 ("the Act), the requirements for a valid customary marriage entered into after the promulgation of the Act, are as follows:

• Both spouses must be over the age of eighteen (unless the necessary permission was granted) and both spouses must consent to be married in terms of customary law;
• The marriage must have been negotiated and entered into or have been celebrated in accordance with customary law.

In the event that the above requirements are met, the customary marriage must be registered in accordance with the following further requirement prescribed by the Act. In this regard it should be noted that it is the spouses duty to ensure that the marriage is registered and that such registration happens within 3 months after the conclusion of such marriage.

• Either spouse may apply to the registering officer in the prescribed format for the registration of the customary marriage; and
• must furnish the registering officer with the prescribed information and any additional information which the registering officer may require in order to satisfy himself as to the existence of the marriage

The prescribed information requested in the official registration form is the following:

• The particulars of the husband and a declaration signed by the husband declaring the he agreed to be married in terms of customary law;
• The particulars of the wife and a declaration signed by wife agreeing to the marriage in terms of customary law;
• The particulars of the Customary Marriage and Lobolo Agreement;
• A declaration by traditional leader or his or her delegate where possible confirming the marriage
• Declarations by representatives of each party, which representatives must have been present at the marriage and confirm same;
• A declaration by the registering officer setting out the reasons why he or she feels that the registration of the marriage should or should not be approved

A registering officer must in terms of the Act, if satisfied that the spouses concluded a valid customary marriage, register the marriage recording the identity of the spouses, the date of marriage any lobolo agreed to and any other particulars prescribed. After registration the officer must issue a certificate of registration bearing the prescribed particulars, which certificate will serve as prima facie proof that the marriage exists

Also, although the Act prescribes a period within which the marriage is to be registered, the Act does not expressly indicate the consequences of non -, alternatively late registration, save for stating that these deficiencies do not affect the validity of the marriage. This makes one wonder what purpose at all was envisaged by the Legislator with registration. Certainly the principle of legal certainty is not advanced in terms of the present system.

From the above it soon became abundantly clear to us that whoever had endeavoured to register the marriage of our client had not adhered to the specifications laid down by the law.

We decided to obtain an opinion directly from the proverbial "horse's mouth" to enable us to properly advise our client in respect of any practical requirements in respect of registration. Various offices of the Department of Home Affairs were contacted to enable us to address the necessary enquiries. Much to our surprise the officials of the Department seemed to be far from ad idem and particularly confused regarding the exact requirements and the implementation thereof.

The only aspect on which all the offices agreed, was that both parties should be present when the registration of the marriage is requested, despite the Act indicating expressly to the contrary that either one of the spouses may attend to the registering of the marriage.

Most of the officials were not aware of any form that needed to be completed, although the prescribed form is available on the Department's official web site. The officials merely stated that both parties together with their representatives should attend at the offices of Home Affairs to request the registration of their marriage. Not once were we told that it was required that the representatives should at least have been witness to the lobolo agreement or the customary ceremony.

Some of the officials indicated that the parties should attend at Home Affairs with two official witnesses each and that proof of the lobolo agreement in written form was required. However, no official was able to state exactly what type of information would be sufficient to prove such an agreement.

The conclusion that I reached after my journey, was that the registration system intended by the Legislature to be very simple and practical to implement, is currently in a shocking state of disarray due to the fact that the individuals implementing the registration process in terms of the Act, are quite apparently not adequately informed regarding the applicable provisions of the Act or even the correct procedures to be implemented.

We noticed further that there seems to be a loophole in the Act which could potentially be utilised to commit fraud. Surely both spouses should be required to attend at Home Affairs in order to register the marriage and to corroborate the veracity of the marriage. Alternatively, the traditional leader or relevant person conducting the ceremony should complete a prescribed form, similar to the form prescribed in terms of the Marriage Act no 25 of 1961, on the day of the ceremony stating that he or she is satisfied as to the identity of both parties and that the parties did in fact conduct a valid marriage ceremony.

There are some groups of campaigners who advocate that the attendance of one spouse at the Department of Home Affairs as presently provided for in the Act, should be sufficient to register a customary marriage as they are of the opinion that husbands often do not wish to register customary marriages due to the benefits and rights conferred upon woman by the Act and as a result further of these women now, being able to register the marriage on their own. We are of the opinion that the potential harm to a person not consenting to a customary marriage and a pursuant fraudulent registration of an alleged customary marriage to such a person, far outweighs the benefits of women being unilaterally entitled to register a customary marriage. Marriage after all remains a voluntary institution?

Furthermore, the fact that the Act prescribes a time limit for registration of the customary marriage and then goes on to declare that no penalty is applicable in the event of non-compliance, appears to be contradictory and nonsensical.

It is extremely concerning that the existing procedures could be (and are open to be) abused to fraudulently indicate marriage to a person without such a person's consent, for purposes of example acquisition of inheritance or citizenship and that innocent parties are in these instances not sufficiently protected by the prevailing legislation. In conclusion it seems that simple amendments to the Act and education of the officials implementing the Act would go a long way in protecting the rights of all individuals equally.