As a result of the legal status it was given in the past, customary marriages are problematic in conveyancing matters today.
THE PAST AND PRESENT EXPLAINED.
In the past, such practices were not officially recognised by South African law. African couples, however, continued to follow through on certain marital customs, and this resulted in them getting married in terms of their customary rights and the Black Administrative Act of 1927. This Act was passed to regulate the affairs of African people specifically – and these included all marital rituals and preferences.
From 1927, African citizens had the choice of either marrying in terms of the Black Administrative Act (BA), or they could proceed with marriages according to their customs – that is, customary union. Before 1927, customary unions were not recognised by the South African law. It was only after the Marriage and Matrimonial Property Law Amendment Act of 1988 was passed, that the customary union was recognised.
This Act, however, still did not recognise the customary union as a legal marriage. The only law that eventually recognised customary union as an official marriage was the Recognition of Customary Marriage Act of 1998, as it stated that all customary marriages are to be given legal status.
Consequently, the legal status of all parties involved in theses marriages was affected.
This union is only recognised as a customary union if both parties adhere or comply with the custom of their tribal group which they belong to.
Black Administration Act of 1927
This law was passed to allow for the legal recognition of customary marriages of African people. For this marriage to be valid, both parties had to adhere, comply, and:
- agree to marry each other, and
- marry in the presence of a commissioner.
These marriages were out of community of property unless the parties declared otherwise to the commissioner. An antenuptual contract (ANC) was not required, and parties were issued with the marriage certificate after concluding the marriage.
Marriage and Matrimonial Property Law Amendment Act of 198
This law was passed to give the customary union some recognition, but it provided that a party to a customary union cannot marry by civil rights (BA). This had an impact on the property regime of marriages in that according to BA all customary marriages were now considered in community of property.
APPLICATION FOR CUSTOMARY MARRIAGES IN THE PRACTICE OF CONVEYANCING.
Deeds Registries Act
Section 15(A) 1 of the Deeds Registration Act stipulates that a person who completes (signs) the preparation clause on a deed or document, accepts responsibility for the accuracy of the facts referred to in Regulation 44(A) – which includes the correct name, ID number, and status. The conveyancer is responsible for verifying the marital status set out in the deed that has been prepare and therefore becomes liable should a person suffer any damages as a result of negligence.
Civil Marriages in terms of the Black Administration Act (1929 – 1 December 1988)
In terms of Section 22 of BA, all marriages concluded before 1 December 1988 were interpreted as out of community of property, except where the parties stated to the marriage officer otherwise (that is, in community of property). No ANC was registered, and if the parties had entered into a civil marriage in terms of BA, the effect was that the customary union was dissolved.
Marriage and Matrimonial Property Law Amendment Act of 1988 (2 December 1988 – 14 November 2000)
All marriages concluded after 2 December 1988 were automatically considered in community of property. This Act specifically stated that no party to a customary union can enter into a civil marriage (BA). This meant that any civil marriage entered into after this date whilst a person is a party to a customary union, resulted in the purported marriage being null and void [Netshituka v/s Netshituka (426/10) (2011) ZASCA 120 20th of July 2011].
Recognition of Customary Marriages Act of 1998 (15 November 2000 – present)
This Act recognises customary union as a marriage, and it prohibits any party to this type of marriage to marry in terms of the Marriage Act no.25 of 1961. All customary marriages entered into after 15 November 2000 are therefore automatically considered in community of property. An ANC has to be completed, signed and registered in the Deeds Office within three months to ensure the customary marriage is to be considered out of community of property.
Furthermore, a customary marriage is defined as “a marriage concluded in accordance with customary law.” This law, in turn, is defined according to the customs and traditions observed among the indigenous people of South Africa – that is, rituals that form part of their cultures.
THE REQUIREMENTS FOR A VALID CUSTOMARY MARRIAGE.
There are three requirements for a customary marriage to be valid in terms of the Act:
- Parties involved must be 18 years or older.
- Both parties must consent to the marriages.
- The marriage must be negotiated an entered into or celebrated in accordance with customary law.
The non-registration of a customary marriage will not result in the marriage being invalid. The Act does require that the parties register their marriage with the Department of Home Affairs, but in practice it seldom happens.
The first two requirements (listed above) do not cause problems in practice. Unfortunately, the same cannot be said about the third requirement due to the following reasons:
- The amount payable for lobola must be negotiated and agreed upon amongst the members of the marrying parties (including the woman), but it is not necessary that the full amount is paid in order to fulfil the third requirement. The payment of the lobola can be deferred.
- The compliance with the first two requirements and the payment of the lobola does not bring about a legal customary marriage. Only when the third requirement is fulfilled – usually the celebratory occasion of collecting the wife from her family and bringing her to the husband’s family – a legal customary marriage is constituted and considered in community of property.
Unfortunately, the young parties tend to fulfil all of the above requirements to please their families and show respect to tradition, but do not comprehend the legal process. This means that they are not aware of the three-month period they have to register their marriage with Home Affairs – and this is the start of the so-called conveyancing headache., as Section 15 and Regulation 44, as mentioned previously, hold the conveyancer responsible for accuracy and verification of the facts.
This is further complicated when:
- Couples often fulfil the requirements, yet refuse to register their marriages with Home Affairs to issue a marriage a certificate despite indicating in deeds that their legal status is “married”.
- Couples often fulfill the requirements, yet state that they are not married to the same extent as they would be by BA that is, in a church or during a white wedding with a white wedding dress.
In his Practitioner’s Guide (2013), Allen West advises conveyancers to not rely on only a marriage certificate, but also to obtain affidavits from the involved parties confirming their marital status. This will ensure the conveyancers are covered against potential liability issues and litigation, and in this way, Section 15 and Regulation 44 is adhered to.
A husband who wants to enter into a second customary marriage must apply to the Court and furnish, in writing, a contract which serves to regulate their property regime during the subsistence of the marriage. Unfortunately, marriages entered into in contravention of the aforementioned requirement are valid, but in court obiter held that such a second marriage cannot be in community of property – despite the first one being so [Ngwenyama v/s Mayelane (474/11) (2012) ZACSA 94 1st of June 2012].
It is necessary to note that all monogamous customary marriages entered into before 15 November 2000 are automatically considered in community of property [Gumede v/s State President of the Republic of South Africa (CCT50/08) (2008) ZACC 23].