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BLACK MARRIAGES AND CUSTOMARY MARRIAGES BEFORE 1988

Recently, we had a matter where our client’s husband was claiming that as a black couple married before 1988, their marriage was automatically out of Community of Property as their marriage fell within the realm of the Black Administration Act 38 of 1927. Below we explore the differences between Black Marriages and Customary Unions:

1.    Before 1988, civil marriages by black persons were governed by Section 22(6) of the Black Administration Act 38 of 1927. In terms of the Act, black marriages that took place before 1988 were automatically out of Community of Property (i.e. with the exclusion of profit and loss). If a couple wished to be married in Community of Property, they were required to declare this, jointly, before a magistrate, Bantu affairs commissioner or marriage officer. Such declaration had to be made at least one month prior to the marriage ceremony. This was, however, only possible where a husband was not already a party to a customary union with another woman. Section 22(6) was repealed in 1988 by the amendment of the Act, bringing black marriages in line with civil marriages recognised under the Marriages Act of 1961; i.e. black marriages are now automatically in Community of Property.

2.    Customary marriages on the other hand were referred to as “customary unions” and were not recognised as legal/valid marriages. Therefore, there were no legal implications when a male partner concluded a civil marriage whilst they were part of a customary union. This subsequent marriage resulted in the customary union being dissolved. Customary unions were also regulated by Section 22 of the Black Administration Act.

These unions were not recognised as legal marriages because they were potentially polygamous and were not solemnised by authorised marriage officers as was required by the Marriage Act 25 of 1961. They were seen as a contract between two family groups rather than two individuals, involving payment of a “bride-price” known as ilobolo.

In 1988, section 22 was amended by the Marriage and Matrimonial Property Law Amendment Act. This Act prohibited a husband of a customary union from contracting a civil marriage with another woman whilst the customary union still existed. Currently however, customary marriages are regulated by the Recognition of Customary Marriages Act 120 of 1988 and are recognised as valid marriages if the requirements in Section 3 of the Act have been complied with.

Author: Phindile Mdluli (Candidate Attorney) (TMJ PMB Office)
Tel:  033 341 9100
E-mail:  phindilem@tmj.co.za