Page 21 - SAReform Book

Summary Research Report 19
3.2.3 Registration and the processual nature of customary marriage The findings demonstrate that, although a customary marriage is generally conceptualised as a process, there is agreement that at a specific point in time, the marriage could be registered, as it is recognised as valid by the parties, the families and others in the community. The findings suggest that, in some cases, this point is reached when (a) lobolo has been agreed upon, and (b) the wife has been transferred to the husband’s family. For others, the point is reached when (a) full lobolo has been paid, and (b) the wife has been transferred. Some people link registration of a marriage with the transfer of lobolo. Given the important role that lobolo plays, and the fact that it can be paid over a long time, a strict time requirement for the registration of a marriage is problematic. Some people are unable to meet this time require- ment. Currently there is no penalty if a marriage is not registered within three months of it coming into effect. It is unclear what is achieved by insisting that registration occurs within three months. The findings show that this require- ment is unrealistic as some people link registration with the complete transfer of lobolo and are therefore unable to meet this time requirement. We recom- mend that Parliament reconsiders the time for registration and introduce an amendment to the RCMA that makes the registration period open-ended. We argue that there are more important things in the marriage process than mere registration, and creating additional barriers to registration defeats the objec- tive of the requirement.
3.2.4 Requirement of consent of both parties to register
There is still a discrepancy between the requirement in the Act for the consent of both parties to register a customary marriage and the requirements of the DHA. There is also a discrepancy between the Act, the DHA website, and the Bench Book regarding who can register the marriage. We recommend that one spouse should be able to register the marriage. Registration does not deter- mine whether the marriage is valid or not. It is merely a statement that ‘something’ took place; it is not irrefutable proof of the existence of a valid marriage. The individuals involved can still bring evidence to argue that certain requirements for a valid marriage were not met.
3.2.5 Registering pre-RCMA marriages
It appears that pre-RCMA marriage certificates are not recognised by some organisations, including insurance companies. We argue that pre-RCMA mar- riages that were registered according to the systems then existing (eg the Transkei or KwaZulu-Natal Codes) and that have certificates of marriage must be accepted. The parties holding these certificates should not be pun- ished retrospectively. At a more general level, the findings show that proving the existence of a valid marriage to insurance companies is problematic.
3.3 Regulating polygynous marriages
Two issues arise with regard to the regulation of polygynous marriages. These are the registration of the marriages at the DHA and the contract for the regulation of the proprietary consequences of the marriage.