Improving Compliance with Section 4(1) of the Recognition of Customary Marriages Act 120 of 1998: Registration of Customary Marriages

• Published in: Potchefstroom electronic law journal Vol. 27; no. 1; pp. 1 - 39
• Main Authors: Nkuna-Mavutane, Matthews Eddie, Jamneck, Juanita
• Format: Journal Article
• Language: English
• Published: North-West University (Potchefstroom Campus) 02-07-2024; North-West University
• Subjects: civil marriages (umfazi we phepha); Kha Ri Gude; Law; marketing; marriages and divorces; registration of customary marriages; Statistics South Africa; Recognition of Customary Marriages Act (the RCMA); marketing; registration of customary marriages; Department of Home Affairs (DHA); Statistics South Africa; Kha Ri Gude; indigenous African people; customary marriages; civil marriages (umfazi we phepha); marriages and divorces; National Population Register (NPR); civic services
• ISSN: 1727-3781; 1727-3781
• DOI: 10.17159/1727-3781/2024/v27i0a15362

The article investigates the compliance with section 4(1) of the Recognition of Customary Marriages Act (hereafter the RCMA). The section compels spouses in customary marriages to register their marriages within a stipulated period. From the research, it is clear that there is non-compliance with the duty to register customary marriages within the prescribed ninety days after their conclusion. Furthermore, most registered customary marriages are registered only after their first year of existence. Most alarming is that the number of registered customary marriages is rapidly declining. The following factors were found to be reasons why there is non-compliance with the duty to register customary marriages: non-adherence to registration deadlines; absence of a culture of registering customary marriages; contradictions as to the party or parties responsible for registering a customary marriage; lack of a distinction between the process of registering (customary) and solemnising (civil) marriages; the adoption of a non-punitive approach in dealing with the non-registration; poor legislative drafting; the absence of knowledge of the rights and benefits afforded through the RCMA; minimal access to DHA offices and service delivery; the existence of other marriages (umfazi we phepha) and a high regard for civil marriages. The research shows the benefits of registering customary marriages and the adverse effects associated with non-registration. Based on the identified problems and adverse effects, recommendations are made on achieving compliance with the duty to register customary marriages. These recommendations include creating a culture of registering customary marriages, amending certain portions of the RCMA and its regulations, enhancing the registration process, improving literacy and embarking on education-related initiatives.