Insights into the legislative framework on customary marriages in South Africa

Abstract

The Recognition of Customary Marriages Act (RCMA) of 1998 regulates customary marriages in South Africa. This Act was enacted in 2000 and it brought a difference in the rights of both the husband and wife within South African customary marriages. The RCMA is an important piece of legislation because it has changed how the South African law treated customary marriages in the past, as opposed to civil marriages. However, this does not take away the fact that there have been a lot of discrepancies and vagueness concerning some of the provisions of this Act. The law concerning customary marriages in South Africa is ambiguous and, in some instances, it fails to provide legal protection altogether. There has been a lot of misunderstanding about the essentials required for a customary marriage to be valid. According to the RCMA, there are only three requirements for a customary marriage to be valid. These include that both parties must be 18 years or older, the parties must both consent to the marriage and lastly, the marriage must be negotiated, entered into and celebrated according to customary law. Even though there is a statute governing customary marriages in South Africa, it is a requirement that the marriage be celebrated according to the custom of the parties. There has been a high level of contradiction not only around the requirements of customary marriages, but largely around what constitutes a valid customary marriage in South Africa, and the rules applicable thereto. The law is silent about many issues concerning customary marriages, hence the legal implications. This study seeks to address these legal implications together with the shortfalls of the law and where applicable, provide possible clarification and solutions. It therefore focuses on the 1996 Constitution of South Africa and the RCMA, as these are the two main legislations for customary marriages in South Africa. The aim of this study is to ensure equal legal protection of the rights of the parties married in a customary marriage; be it through multi-party marriages, divorce, property etc. It explores the many conflicts in the legislation guarding against customary marriages in South Africa. Lastly, the objective is to reflect on what the law regards as a customary marriage and address the controversy

surrounding the contradictions that the law pertaining to customary marriages has created.