Is Traditional Marriage In Uganda Legally Recognized Even If Its Not Registered

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The Recognition of Customary Marriages Act 120 of 1998 (the Human action) brought most primal changes to the legal position of a customary marriage in South African law. The Act ensured that a customary marriage is – for all purposes of South African police – recognised as a valid matrimony whether it is registered or not, considering the compliance of the requirement for validity thereof.

Before dealing with the principal upshot at manus, information technology is important to sympathize the significant of key words.

Section ane of the Human activity defines 'customary police' as 'the community and usages traditionally observed among the ethnic African peoples of S Africa and which form role of the civilisation of those peoples'. 'Customary marriage' is divers as 'a marriage ended in accordance with customary constabulary'.

The requirements for the validity of a customary spousal relationship

Section 3(1) of the Act states the requirement for validity equally follows:

'For a customary marriage entered into after the commencement of this Act to be valid –

(a) the prospective spouses –

(i) must both be higher up the age of 18 years; and

(two) must both consent to exist married to each other under customary law; and

(b) the marriage must exist negotiated and entered into or historic in accordance with customary law'.

The registration of customary matrimony in terms of south 4 of the Act

'(ane) The spouses of a customary marriage have a duty to ensure that their marriage is registered.

(2) Either spouse may apply to the registering officer in the prescribed class for the registration of his or her customary marriage and must replenish the registering officer with the prescribed information and any additional information which the registering officer may crave in order to satisfy himself or herself equally to the existence of the matrimony.

(iii) A customary marriage –

(a) entered into earlier the commencement of this Human action, and which is non  registered in terms of whatsoever other law, must exist registered within a menses of 12 months afterwards that get-go or within such longer flow as the Government minister may from time to time prescribe by notice in the Gazette; or

(b) entered into after the commencement of this Deed, must be registered inside a catamenia of 3 months after the conclusion of the marriage or within such longer period every bit the Minister may from fourth dimension to time prescribe by find  in the Gazette.

(4) (a) A registering officer must, if satisfied that the spouses concluded a valid customary marriage, register the wedlock by recording the identity of the spouses, the appointment of the spousal relationship, whatever lobolo agreed to and any other particulars prescribed.

(b) The registering officer must issue to the spouses a certificate of registration, bearing the prescribed particulars.

(5) (a) If for whatever reason a customary matrimony is not registered, whatever person who satisfies a registering officeholder that he or she has a sufficient involvement in the matter may utilise to the registering officer in the prescribed manner to inquire into the beingness of the marriage.

(b) If the registering officer is satisfied that a valid customary marriage exists or existed between the spouses, he or she must register the marriage and issue a certificate of registration as contemplated in subsection (four).

(vi) If a registering officeholder is not satisfied that a valid customary marriage was entered into by the spouses, he or she must reject to register the marriage.

(7) A courtroom may, upon application made to that court and upon investigation instituted by that court, order –

(a) the registration of any customary union; or

(b) the cancellation or rectification of any registration of a customary spousal relationship effected by a registering officer.

(8) A certificate of registration of a customary union issued under this section or whatever other constabulary providing for the registration of customary marriages constitutes prima facie proof of the beingness of the customary spousal relationship and of the particulars contained in the document.

(nine) Failure to register a customary marriage does non bear on the validity of that marriage'.

In Thembisile and Some other v Thembisile and Another 2002 (2) SA 209 (T) information technology was held, that, as it was non disputed that the deceased had entered into a valid customary matrimony with the first applicant, it was unnecessary to consider whether the customary wedlock had been properly registered. In any consequence due south iv(ix) of the Act provided that failure to register a customary wedlock did not affect the validity of that marriage. The court further held that the customary union betwixt the deceased and the first applicant existence common cause, the first respondent bore the onus of persuading the courtroom that that wedlock had been dissolved. A customary spousal relationship was not confronting public policy and could not lightly be assumed to accept been terminated by divorce. Proof on a balance of probabilities had to be adduced to back up the contention of dissolution.

The Act recognises a wedlock, which is valid at customary constabulary and existed at the starting time of this Act, and further stipulates that a customary union entered into later on the start of this Act, which complies with the requirements of this Act, is for all purposes recognised as a union.

It is clear from the diction of the provisio that the requirements for the validity of the marriage stipulated in terms of the Act do not apply retrospectively. They just apply to customary marriages entered into on or after 15 November 2000 unless the parties have registered their marriage within a catamenia of 12 months later on the first of the Human action or within such a longer period equally the government minister may from time to time prescribe past discover in the Authorities Gazette to be effected or that they had practical to change the regime of their marriage as envisaged in terms of the provisions of Betrothed Property Act 88 of 1984. In terms of s iv(three)(a) and (b) of the Deed (GN1045 GG42622/eight-8-2019) the minister recently prescribed the time period for registration upwardly to 30 June 2024 for both customary marriage entered into on or after the commencement of the Act.

In conclusion, the non-registration of a customary marriage does non affect the validity of such marriage, thus such marriage is not null and void.

Dineo Caroline Machedi BCom Law LLB (UFS) is a legal practitioner at NW Phalatsi & Partners in Bloemfontein.

This commodity was first published inDe Rebus in 2020 (May)DR 14.

Source: https://www.derebus.org.za/does-the-non-registration-of-customary-marriage-affect-its-validity/

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