Centre for Applied Legal Studies
Comment on the B110-98 Recognition of Customary Marriages Bill

Likhapha Mbatha (Gender Research Project, Centre for Applied Legal Studies, University of the Witwatersrand)

1 Introduction.

The Bill addresses many of the problems faced by rural women married under customary law. This is achieved in several ways. This paper summarises the most important sections of the Bill and highlights the provisions that do not fully protect the interests of women. We make some suggestions on how these provisions may be changed, but will develop this more fully in our submission to the Portfolio Committee on Justice.

2 Definitions - section 1
2.1 "Court"
The Bill defines courts as High Courts or Family Courts. Given the centrality of the Courts to the registration of customary marriages, the formation of polygynous marriages and divorce, it is important that the Courts are accessible to rural communities. We note that High Courts are limited to major urban centres. Although it is assumed that Family Courts will be in the Magistrates Courts, the actual establishment of these courts in every district is some way off.

It is of critical importance for the efficacy of this Bill that urgent attention is paid to the development of these Family Courts, together with appropriate forms and procedures. In the interim, it may be useful to consider whether Magistrate’s Courts cannot be given a role in the procedures of the Bill.

2.2 "Customary law"

Customary law is defined as the ‘customs and usages traditionally observed by the indigenous African peoples of South Africa’. Defining customary law is always difficult given the differences between formal customary law as found in the Black Administration Act 38 of 1927 and case law, and ‘living’ customary law found in the practices of communities. Indeed, customary law appears to mean different things in the Bill, depending on the context. This indiscriminate use of the term needs to be clarified within the Bill by distinguishing between the Black Administration Act and the living customary law as the context requires.

We suggest that the definition must accommodate the fluidity that is always attributed to customary law and give legal recognition to changing customary practices. For example:
Customary law is the "customs and usages observed among African peoples of South Africa".
In our opinion this construction accommodates changes in the practices and usages of traditional cultures.

3 Recognition of Customary Marriages

Section 2 will improve the lives of many rural women by giving legal recognition to the way they marry. S2 (1) recognises existing customary marriages and s2(2) provides for customary marriages that precede the Bill.

Customary marriages are potentially polygynous. The proposed legislation recognises polygyny (both existing polygyny and polygyny that precedes the Act)1. In our research, women opposed the legal recognition of polygyny and advocated for a policy that would ignore polygyny, but provide some legal protection for women and children in existing polygynous relationships. Section 2 read with the provisions on proprietary consequences of customary marriages and the contractual capacity of spouses2 demonstrates the drafters' concern for the protection of the marginalised groups like women and children. However, the drafters have found it necessary to recognise the institution of polygyny (which goes against many women’s expressed views) to achieve this objective.

The issue of the consent of the first wife to the second marriage is not clarified in the Bill. The drafters have made the procedure of entering polygyny3 extremely cumbersome. We adovocated for a policy which would make polygyny expensive for men. We fear that the Bill may result in the negative and unanticipated side effect of encouraging men to enter into legally unregulated and unprotected forms of polygyny or cohabitation.

4 Requirements for validity of customary marriages
4.1 Section 3(1) deals with customary marriages entered into after the commencement of the Act. The following are requirements for a valid customary marriage:
4.1.1 Parties to marriage must be 18 years (both men and women).4
4.1.2 Both parties must consent to marriage.5

4.1.3 The marriage must be celebrated in accordance with customary law.6

The nature of "celebration" in accordance with customary law is not spelt out. This may be appropriate in terms of the shifting nature of customary law.

4.2 Section 3 (2) prohibits parties to a customary marriage from contracting a civil marriage with third parties; while section 10 (4) allows them to contract a civil marriage with each other during the subsistence of a customary marriage. The effect of entering into a civil marriage is to change the marriage regime to a civil one and its proprietary consequences.

Research by CALS has suggested that Africans have previously mixed marital regimes in order to benefit from the proprietary consequences of a civil marriage and simultaneously adhere to their cultural identity. Given the improvements to the rights of women in customary marriage, it is assumed that such a mixed system will no longer be needed.

4.3 Section 3 (3)(a) provides that both parents must consent to the minor’s marriage. This does not reflect the reality of many families where women are the de facto heads of the family. In many instances husbands are away for long periods of time or have deserted their wives. In the circumstances, a provision which regards the consent of either spouse (regardless of sex) or guardian should be considered.

In this respect we note the decision of the judge in the case of Mabena v Letsoalo7 where a woman who was deserted by her husband had received her daughter’s lobola. In deciding whether this was permitted in customary law, the court considered the reality of families headed by women and the fact that women are receiving lobola on behalf of their daughters in practice. The court observed that many women found themselves in similar circumstances to the woman before it and allowed the receipt.

4.4 Section 3 (3)(b) extends the application of section 25 of the Marriage Act8 to Africans. According to this provision the commissioner of child welfare, the judge and the court may grant consent where parents refuse it unnecessarily. This provision will help minors whose parents refuse consent because of personal differences unrelated to the children or because of the failure of family groups to agree on lobola.

4.5 Section 3 (4)(a) deals with situations where one or both parties are below marriageable age. It provides that the Minister or a delegated officer may grant permission to an under age person/s to marry without parental consent. The consent of the parties to the marriage will still be necessary.

The Minister or a designated officer may declare the marriage valid even if it lacked the consent of the parent, guardian, or a person according to section 25 of the Marriage Act, provided they consider the marriage desirable and in the parties’ interests.9

4.6 Section 3 (5) extends the application of section 24A of the Marriage Act to minors marriages according to customary law but subject to section 3 (4). We do not believe that the drafters have merely extended these legal provision to apply to customary marriages for the sake of uniformity with civil law.

4.6 Section 3 (6) provides that the validity of a marriage between persons related to each other by blood or affinity will be regulated by customary law. This is right where the marriage is according to customary law.

5 Registration of customary marriages
5.1 Section 4 (1) provides for registration by a marriage officer of
(a) existing customary marriage, and
(b) customary marriages entered into after the coming into effect of the Act.

The Act requires that marriages be registered "within reasonable time". The requirement to register within "reasonable time" would be worrying without the provision for the registration of marriage by any persons with an interest. Our concern is that women have argued that men seek to delay registration of a marriage. The Bill protects women’s interests by providing that registration can be effected by any person who has an interest in the marriage.10 Presumably this will allow women to initiate registration without men.

5.2 Women in the rural areas have attached great importance to civil marriage certificates. The Bill suggests that marriage certificates be issued on registration11 and that these certificates of registration be prima facie proof of existence of a customary marriage12. This will provide certainty for previously disadvantaged wives. In the past, urban women with marriage certificates were given preference to rural women married under customary law regarding property disputes.

5.3 Section 4 (2)(a) requires a marriage officer to first satisfy himself or herself that the marriage was concluded according to customary law, and then must register it:
noting the identity of spouses, the date of marriage, and lobolo agreed upon.

This identifies agreement on lobola rather than payment as an essential element of the celebration of a customary marriage. (See paragraph 9.7 below)

5.4 The marriage officer has to satisfy himself or herself of the existence of a customary marriage before registering it and issuing a certificate of registration.13 Section 4 (3) instructs the marriage officer to refuse registration if not satisfied that a customary marriage exists. This causes some problems:

It contradicts the provision on polygyny in the sense that a customary marriage has to be in existence before it can be registered. For purposes of polygyny this provision may be read to encourage cohabitation before legal recognition of a polygynous union.

The issue of date of marriage is also a factor here. Which date is the Bill concerned with? Is it the date when parties started cohabiting? This is important because recognition of customary marriages in the Bill includes recognition of polygyny. Customary agreements on lobolo in respect of a second wife may precede an application to register the second marriage. This compounds the issue of the date of marriage because the second marriage would be concluded in accordance with customary law and awaiting registration. This contradicts the procedure stipulated by the Bill for parties to enter into polygyny.

5.5 The court is empowered to investigate, order registration14 and cancel or rectify a customary marriage as it sees fit.15 What will the court do where a man party to customary marriage has complied with all the requirements of customary marriage and has cohabited for some time with a second woman during the subsistence of a prior customary marriage contracted under this Bill. This question is important because failure to register a customary marriage does not nullify it16. It is presumed that the court will recognise the first marriage in these circumstances.

6 Determination of the age of a minor
Section 7 gives the right to registering officers, commissioner of child welfare or court to assess and allocate an age to a minor whose age is not known. This is an important provision for rural communities reluctant to register their children’s births. It is also in line with the reality that some children do not know their ages or where they know them they lack documentation to prove them.

7 Equal status of spouses
Section 6 makes the status of a customary wife equal to that of her husband. This means that a woman married under customary law is now in a position to make decisions that are binding on the family. This is an important provision because for a long time rural women have participated in amassing livestock and marital property without their husbands who work in the mines and in urban centres. These women lacked legal capacity to make decisions affecting the property they helped amass. This provision means, for example, that rural women will be able to decide to sell a cow for purposes of buying children school uniforms and other necessities.

8 Proprietary consequences of customary marriages and contractual capacity of spouses
8.1 Section 7 (1) provides for the consequences of existing customary marriages to be governed by customary law.17

8.2 Section 7 (2) provides that the consequences of customary marriages entered into after the commencement of the Act will be in community of property, provided the man is not party to polygyny.

8.3 Section 7 (3) extends the application of Chapter III and sections 18,19 and 20 of chapter IV of the Matrimonial Property Act 88, 1984 to customary marriages in community of property.

8.4 Section 7 (4) creates room for a change of the matrimonial property regime by parties to customary marriages in existence at the time the Act commences.
Section 7 (4)(a) requires sound reasons for the proposed change;
Section 7 (4)(b) requires written notice of the proposed change has to be given to all creditors for amounts above R500 or any amount determined by the minister of justice in the gazette.
Section 7 (4)(c) state that provided no person will be prejudiced by the change, parties are authorised to enter into a written contract. This gives the court power to determine conditions to regulate the future devolution of property.

8.5 Section 7 (5)(a) provides that a party in an existing customary marriage who wishes to enter into polygyny must apply to court: -

(a) to suspend or freeze the matrimonial property regime that is applicable to the existing marriage;

(b) to effect a division of property;

(c) to approve a written contract dealing with the future devolution of matrimonial property.

The provisions of section 7 (5)(a) are confusing when read with the section on registration of customary marriages. See the comments in paragraph 5 above. They are also complicated, raising a concern about their efficacy.

Section 7 (5)(b) provides for all existing spouses and prospective spouses to be joined in the proceedings. The principle is good but chances of getting parties to agree are minimal and our concern is that this will lead to expensive and contested court proceedings.

Section 7 (5)(c) provides for the circumstances of the family group to be considered in deciding whether to grant an application to vary the matrimonial property regime with the aim of effecting equitable distribution of property.

Section 7 (6)(a) provides that parties to a customary marriage must be furnished with certified copies of the matrimonial property regime agreement. Another copy must be filed with the deeds registry office of the area.

Section 7 (6)(b) states that the Registrar of Deeds will register the parties’ future matrimonial regime.

9 Dissolution of customary marriages
This section provides for dissolution in a court and limited grounds for divorce. This is beneficial to women. However the need to go to Court for a divorce raises questions of accessibility.

9.1 Section 8(1) provides that the dissolution of a customary marriage will be effected by a court which will issue a divorce or nullity decree.

9.2 The marriage can only be dissolved on the grounds of irretrievable breakdown of the marriage (Section 8(2)).

9.3 Section 8(3) extends the application of section 6 of the Divorce Act No. 70 of 1979. This section seeks to safeguard the interests of dependant and minor children during divorce. Under the section, no divorce decree can be granted before the court is satisfied that welfare of the children is satisfactory (s 6(1)(a)). For example the court has powers to carry on any investigation it deems necessary and order any person to appear before it (s 6(2)). It may make an order with regard to maintenance, custody, guardianship and visitation rights or access to the minor child (s 6(3)).

9.4 Section 8(4) provides that a court hearing an action to dissolve a customary marriage may:

(a) appoint a suitably qualified person to assist a spouse who is unable to represent herself/himself or to afford a qualified representative.

(b) order joinder of proceedings with those who have interest in the matter.

9.5 Section 8(5) provides that Mediation in Certain Divorce Matters Act No. 24 of 1987 is applicable to the dissolution of a customary marriage. The purpose of the Act is to provide for mediation in certain divorce proceedings especially in cases where minor or dependent children are involved. The purpose of mediation is to consider information on the circumstances within which a divorce decree has to be granted and recommendations made by the Family Advocate.

9.6 Section 8(6) provides that the procedure for dissolving a customary marriage must be regulated by the rules of that court.

9.7 Section 8(7) provides that a court granting a decree for dissolution:

(a) has powers contemplated in sections 7,8,9 and 10 of the Divorce Act of 1979. These sections deal with division of assets and maintenance of parties (s 7), rescission, suspension or variation of orders (s 8), forfeiture of patrimonial benefits of marriage (s 9) and costs (s10)).

(b) has powers under section 24 (1) of the Matrimonial Property Act No. 88 of 1984 which deals with the dissolution of minor’s marriage because of the absence of the necessary consent of parent, guardian or the commissioner of child welfare. The court is empowered to make an order it deems fit with regard to division of matrimonial property of the spouses.

(c ) may make an order with regard to custody and guardianship of minor children of the marriage.

(d) when making an order for payment of maintenance, may consider any payment made according to customary law.

There is clarity needed in respect of the last point. Does this mean that maintenance will not be ordered in cases where lobola was transferred or is the concern on customary seduction damages for impregnating girls? With regard to lobola the Bill has defined lobola as cash or property pledged in consideration of a customary marriage. There are customary rules regulating return of lobola. Our concern is that maintenance is for women and children while the person entitled to lobola is the family head. In practice lobola is no longer available to assist women and children whose marriages have broken down.

The drafters’ approach to dealing with lobola demonstrates understanding and appreciation of the constitutional provisions. It is also in line with the recommendation that lobola should be made symbolic in order to eradicate the abuse of the institution by a girl’s parents and guardians. A law banning lobola would be hard to enforce. However, the practice has already been affected by the changing socio-economic conditions prevailing in the country, such as unemployment and the rate of inflation. This Bill should permit customary law to recognise changes in traditional practices like lobola. This is why we are emphatic that the definition of customary law should accommodate changes in customary practices.

10 Age of majority
Section 9 provides that the age of majority of any person will be determined in accordance with the Age of Majority Act 57, 1972 or an order of a court.

11 Change of marriage system
Section 10 allows parties to a subsisting customary marriage to enter into marriage according to the Marriage Act 25 of 1961 provided they are not parties to polygyny. This will dissolve the customary marriage.

12 Regulations
Section 11 - The Minister may make regulations relating to

(a) requirements and information necessary for the registering officer of a customary marriage;

(b) the procedure and manner in which the registering officer may satisfy himself or herself as to the existence or the validity of a customary marriage;

(c ) the issuing and form of certificates to be issued on customary marriage; and

(d) any matter necessary to facilitate for the registration of customary marriages.

Given the complexity of some proceedings in the Bill and the fact that many people wishing to use these will be poor, in rural areas, perhaps illiterate, and certainly unused to formal courts; it will be important that the regulations provide simple, clear procedures that do not require lawyers.