Customary marriage is a challenge to conveyancers, estate practitioners and divorce attorneys. Proprietary consequences of customary marriages. During the time immemorial the conduct and formation of customary marriage were guided by a system of unwritten rules referred to as custom developed and passed on from generation to generation. This position was changed by the Constitutional Court in the case of, The Constitutional Court held that monogamous customary marriages entered into before the RCMA came into effect are deemed to be in community of property. an application to the court needs to be submitted, allowing the parties to enter into an agreement regulating the proprietary consequences of the marriage. This includes a description of the requirements for a valid customary marriage under the Act and a discussion as to whether lobolo (bogadi) constitutes such a requirement. A customary marriage, as is the case with a civil marriage, may only be dissolved by a decree of divorce issued by a court on the ground that the marriage has broken down and there are no prospects of reconciliation. The court held that failure to comply with the mandatory provisions of Section 7(6) leads to invalidity of a subsequent customary marriage, even though the Act doesn’t contain an express provision to that effect. However, it must be noted that a failure to register the marriage does not affect its validity. A man and a woman between whom a customary marriage subsists may marry each other in terms of the Marriage Act, 25 of 1961, if neither of them is a spouse in a subsisting customary marriage … Lerato launched an urgent application to the High Court seeking recognition of what she asserted to be a customary marriage between herself and HHP, as well as to restore her to the matrimonial home. This article is an overview of the most important provisions of the Recognition of Customary Marriages Act of 1998 which came into operation on 15 November 2000. It further states that a customary marriage entered into after its The content of this website may contain attorney advertising under the laws of various states. (2) A customary marriage entered into after the commencement of this Act in which a spouse is not a partner in any other existing customary marriage, is a marriage in community of property and of profit and loss between the spouses, unless such consequences are specifically excluded by the spouses in an antenuptial contract which regulates the matrimonial property system of their marriage.” They lived together for three years, and during November 2015, he proposed marriage to her. A witness from the husbands family 3. This means that there is only one (joint) estate of the spouses. A witness from the wife’s family 4. Once it has been confirmed that a valid customary marriage has been entered into, we need to consider the proprietary consequences of the union. The original lobola agreement. Neither the High Court nor the SCA in the Tsambo case discussed the patrimonial consequences of its decision, but it follows from the discussion above that because their customary marriage was not registered, they were married in community of property with profit and loss. The RCMA before the Final Order . ‘Customary marriage’ is defined as ‘a marriage concluded in accordance with customary law’. essential pre-requisite for the lawful validation and the lawful existence of the customary law marriage” was not a requirement for a customary marriage, and that section 3(1) of the RCMA had been complied with. The court granted the application to declare section 7(1) unconstitutional and invalid as it unfairly discriminated against wives in old polygamous customary marriages. Cust Law emphasizes duties = BOR emphasizes rights. Application of the RCMA to the Tsambo case. The problem arises when the spouse to an existing customary law marriage wishes to enter into a civil marriage with somebody else. The same can be said about foreign and customary marriages. Many argue that the second marriage should be valid, but that the second marriage should be out of community of property and profit and loss. The customary marriage is extinguished, and it is for this reason that the parties should arguably be allowed to enter into an ante-nuptial contract to regulate the consequences of their new civil marriage. In terms of the laws of succession, where a spouse leaves no will and passes away, the conclusion of a valid customary marriage allows for the surviving spouse to be able to inherit in terms of the law of intestate succession. That monogamous customary marriages Affairs to register the marriage celebration, they both lived together for three years, website. 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