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CUSTOMARY MARRIAGES IN SOUTH AFRICA


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Customary marriages hold deep cultural and social significance in South Africa. The Recognition of Customary Marriages Act 120 of 1998 ("RCMA") was a crucial legislative milestone in recognizing and protecting the rights of individuals entering into customary unions. It sought to address the numerous challenges African women faced in customary marriages, including limited marital power and restrictions on their ability to acquire credit or have contractual capacity.


The RCMA is a transformative piece of legislation that affirms the equal rights and status of spouses in customary marriages. It recognizes the importance of mutual respect, cooperation, and decision-making between partners. By acknowledging the historical imbalances that disadvantaged women, the RCMA aims to rectify these injustices and grant women the ability to make independent choices within the marriage while safeguarding their rights.


One of the key provisions of the RCMA is the acknowledgment that spouses have equal power and authority over marital property. This ensures a fair distribution of assets during the marriage and its dissolution. By granting both spouses equal rights and control over property acquired during the marriage, the RCMA aims to address the historical inequalities that left women vulnerable and disadvantaged. The Act allows women to actively participate in decision-making regarding marital property and financial matters, promoting a more equitable and empowered union.


In order for spouses to enjoy the protection afforded to them by the provisions of the RCMA, they are required to have entered into a valid customary marriage.

Section 3(1) of the RCMA outlines the requirements for a valid customary marriage. These requirements are as follows:


  1. The parties must both be above the age of 18 years;

  2. Both parties must consent to be married to each other under customary law; and

  3. The marriage must be negotiated and entered into or celebrated in accordance with customary law.


Like civil marriages, the default marital regime for customary marriages is in community of property. However, should the prospective spouses wish to avoid getting married in community of property, they can consult the services of a lawyer and set up an antenuptial contract before the lobola/mahadi negotiations and the marriage ceremony.


Contact us if you require legal advice and assistance with your pending nuptials.

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