Is Your Customary Marriage Valid Without a Registration Certificate?

Issue: Is a customary marriage still valid if it is not registered at the Department of Home Affairs?

Here’s a question from Nandipha:

My husband and I got married six years ago. Unfortunately, our marriage has been unhappy for most of that time. We’ve struggled with infertility, which has caused him to lose interest in me and our relationship. I was once pregnant in a previous relationship, but my newborn had a congenital illness and passed away. Despite this evidence of my ability to conceive, my husband still made me go for repeated gynaecological tests because he blamed me for the infertility in our marriage. Unfortunately, he refuses to undergo any tests himself. Consequently, he blames me and has been emotionally absent in our marriage.

Despite facing these and other challenges, I’ve consistently fulfilled my role as a wife, even with his family, since our marriage began. Amidst his womanising, he has apparently found someone he considers the love of his life. He has decided that is who he wants to be with. Surprisingly, I’m not upset about this. In truth, our marriage has not lived up to my expectations, and I am now prepared to start a new chapter in my life.

However, my husband is suddenly denying that we were ever married. This is blatantly not true. Our family did all the traditional ceremonies and acknowledged us as husband and wife. My husband has even paid part of the lobolo. He does not deny any of that but claims that our marriage is invalid because we lack a marriage certificate from Home Affairs. He says this means I have no right to any shared property even though I have been employed throughout our marriage and have contributed to our marital property. I cannot simply walk away with nothing. I’ve sought assistance from his family, but they have cut me off.

Please advise how I can claim my share of the marital property, as I believe I am entitled to it.

From The Legal Desk:

Thank you for your question, Nandipha. I’m sorry you are going through this and that your marriage was not what you had hoped it would be. Not that it would provide any solace to you, but this scenario, where one party denies the existence of a marriage, is, unfortunately, quite common. This is especially true in matters of customary marriages. You are correct in that you are entitled to your share of the matrimonial property. To effectively explain why that is so, let’s take a look at the legals…

For those unfamiliar with the concept of a customary marriage, it is not a marriage established according to the Marriage Act,¹ common law, or any religious law system. Instead, it is formed under customary law as defined by the Recognition of Customary Marriages Act (“RCMA”).² Section 2 of the RCMA grants complete legal recognition to both monogamous and de facto polygynous customary marriages, irrespective of their date of establishment. The RCMA outlines numerous requirements and consequences related to customary marriages, many of which mirror those applicable to civil marriages.

The RCMA sets out three foundational requirements for the formation of valid customary marriages entered into after its commencement:
1. The prospective spouses must be above the age of 18;³
2. The prospective spouses must both consent to be married to each other under customary law;⁴
3. The marriage must be negotiated and entered into or celebrated in accordance with customary law.⁵

Regarding the third condition, the customary prerequisites for finalising a customary marriage vary across communities. As articulated in Motsoatsoa v Roro,⁶ this implies that, before determining the validity of the customary requirements, the courts must ascertain the specific customary criteria relevant to the disputed marriage.

As I have detailed above, in accordance with section 3(1) of the RCMA, it seems that your customary marriage with your husband is legally recognised. Considering the details you’ve shared, assuming both of you were above 18, consented to the marriage, and the union was conducted in accordance with customary law, it meets the criteria for validity. Even if your husband disputes this, the marriage can be inferred from customary practices like a lobolo agreement, a traditional wedding ceremony, or family involvement.

Your husband’s denial of the marriage is based on the absence of a marriage certificate, so let’s talk about that a little bit. In terms of a customary marriage, the “marriage certificate” is referred to as a certificate of registration. According to section 4(3)(b) of the RCMA, spouses in a customary marriage must register their union within three months of the wedding date or a period as specified by the Minister in the Government Gazette. If the officer is satisfied that a valid customary marriage took place, the officer is obligated to issue a certificate of registration containing essential details such as the parties’ identities, the marriage date, and any agreed lobolo.⁸ As affirmed in TM v NM,⁹ the certificate serves as prima facie evidence of the existence of the customary marriage and its associated particulars.

It’s important to note that, as much as the RMCA requires registration of the marriage, section 4(9) makes it clear that non-registration does not affect the validity of the marriage. That means that even without the certificate of registration, as is the case with you, the marriage is still valid. My advice to you is to put together as much evidence to show you were married. This would include anything such as photos of the lobolo ceremony and anything else of that nature. All the best.

Written by Theo Tembo

1. 25 of 1961. ↩︎
2. 120 of 1998. ↩︎
3. Section 3(1)(a)(i). ↩︎
4. Section 3(1)(a)(ii). ↩︎
5. Section 3(1)(b). ↩︎
6. [2010] JOL 26460 (GSJ). ↩︎
7. [2010] JOL 25852 (GSJ). ↩︎
8. Section 4(4) of the RCMA. ↩︎
9. 2014 (4) SA 575 (SCA). ↩︎