Proving the existence of unregistered customary marriages in deceased estates: challenges of the MBU 16 form

Abstract

Post-apartheid South Africa has seen the recognition of polygamous and monogamous customary marriages through the enactment of theReform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009. However, proving the existence of an unregistered customary marriage is a challenge, particularly when a partner dies intestate. Directive 2 of the High Court provides that if a spouse dies before registration of the marriage, the MBU 16 form is used for purposes such as to provide proof of unregistered marriages by requiring the deceased's spouse and family members to complete the form as witnesses of the marriage. Despite its effectiveness thus far,many challenges still arise when using this MBU 16 form to prove a customary marriage which may result in non-recognition, thus depriving the surviving spouse and her children of the benefits of the deceased’s estate, and protection thereof. This study aimed to explore the challenges posed by the MBU 16 form, comparing it with the finalisation of deceased estates and the implications of the requirements to complete the prescribed MBU 16 form to prove the existence of customary marriages in intestate deceased estates. The results show that most challenges emanate from families who refuse to validate or recognise the marriage in question leaving the Master's office with no choice but to dismiss the marriage claims. The study concludes that the lack of knowledge of customary marriage rights and registration leads to the delay or non-registration of these marriages, leaving the surviving spouse in a predicament. In light of these challenges, the study recommends that people in rural areas, be educated about the essence of registering their customary marriages. Furthermore, it is recommended that people register their marriages to avoid complications should either spouse die.