Customary marriage – What is applicable law
In South Africa, the applicable law for customary marriages is a combination of statutory law and customary law, depending on the specific circumstances. Here’s a breakdown of the key points:
Recognition of Customary Marriages:
- ☑️ Recognition of Customary Marriages Act (Act No. 120 of 1998): This Act recognizes the validity of existing customary marriages and outlines the legal framework for customary marriages entered into after its commencement (15 November 2000).
Applicable Law:
- 📌 General Principles: The Act itself provides some general principles and requirements for customary marriages.
- 📌 Customary Law: However, the specific content and rituals of a valid customary marriage are generally determined by the customary law of the specific cultural group or community of the spouses. This means the traditions and practices followed by the specific cultural group regarding marriage would apply.
Determining Applicable Customary Law:
- ☑️ Parties’ Domicile: In case of a dispute about the applicable customary law, the lex loci domicilii (law of the domicile) principle often applies. This means the customary law of the husband’s domicile at the time of the marriage would be the generally accepted point of reference. However, there can be exceptions if both parties come from different cultural backgrounds and there’s a clear agreement on following a different customary law.
Role of the Court:
- 📌 Interpretation and Application: The courts play a role in interpreting and applying customary law in the context of marriages. They ensure that customary practices don’t violate the Constitution or fundamental human rights.
Example:
Imagine a Zulu couple living in Johannesburg gets married under customary law. The applicable customary law in this scenario would most likely be the customary law of the Zulu people. However, if the wife was Sotho and they both agreed to follow Sotho customary law for their marriage, that could be taken into account.
Important Considerations:
- ☑️ Variations in Customary Law: Customary law can vary significantly between different cultural groups.
- ☑️ Evolution of Customary Law: Customary law is not static and can evolve over time. Courts may consider modern societal values when interpreting customary law.
Recommendation:
- 📌 Pre-marital Discussions: It’s highly recommended for couples intending to enter into a customary marriage to discuss and agree on the specific customary law they wish to follow.
- 📌 Consult a Lawyer: Consulting with a lawyer specializing in customary law can be beneficial to ensure you understand the applicable legal framework and your rights and obligations.
