Claiming Your Marital Rights: How to Register a Customary Marriage After a Spouse’s Death
In South Africa, customary marriages are recognized under the Recognition of Customary Marriages Act, 1998 (RCMA). However, if a customary marriage was not formally registered before one spouse’s passing, the surviving spouse may face challenges in asserting their marital rights. Fortunately, there are legal avenues to register a customary marriage posthumously, either through the Department of Home Affairs (DHA) or via a High Court application.
Route 1: Registering the Customary Marriage at Home Affairs Without a Court Order
The Department of Home Affairs allows for the registration of a customary marriage even after the death of a spouse, provided that sufficient proof of the marriage exists.
Requirements for Registration at Home Affairs
1. Application Form: Complete the BI-1699 form (Registration of a Customary Marriage).
2. Supporting Affidavits: Submit sworn affidavits from the surviving spouse and at least two witnesses (preferably family elders or community leaders) confirming the existence of the customary marriage.
3. Proof of Lobola Negotiations: Documents such as a lobola letter or agreement, proof of payment (receipts, bank transfers, or affidavits from family members), and any relevant communication.
4. ID Documents: Provide certified copies of both spouses’ ID documents (or the deceased spouse’s death certificate).
5. Additional Evidence: Photographs of the wedding ceremony, invitations, and any documentation that proves the existence of the marriage.
Process at Home Affairs
- Submit the required documents to the nearest Home Affairs office.
- The marriage officer will assess the application and may conduct an interview with witnesses.
- If satisfied, Home Affairs will issue a customary marriage certificate.
- If there are disputes or lack of sufficient evidence, the application may be declined, necessitating a High Court application.
Route 2: Registering the Customary Marriage Through a High Court Order
If Home Affairs rejects the registration due to insufficient evidence, or if there is a dispute about the validity of the marriage, the surviving spouse can approach the High Court for an order to register the marriage.
Legal Process for a High Court Application
1. Drafting the Application for declaratory relief
- The applicant (surviving spouse) must prepare a Notice of Motion and a Founding Affidavit setting out the history of the relationship and marriage.
- Attach supporting documents (lobola agreement, affidavits from elders, photographs, and other evidence).
2. Citing Relevant Respondents
- The Director-General of Home Affairs must be cited as a respondent.
- Any other interested parties, such as the deceased spouse’s family, may also be included.
3. Filing (issuing) and Serving the Application - The application must be filed at the High Court with jurisdiction in the matter and served on the respondents.
- The State Attorney will typically represent Home Affairs and may either oppose or consent to the order.
4. Court Hearing and Judgment
- If unopposed, the judge may grant the order based on the submitted affidavits.
- If opposed, an oral hearing may be required.
- If the court is satisfied that a valid customary marriage existed, it will issue an order compelling Home Affairs to register the marriage.
5. Implementation of the Court Order
- Once the order is granted, it must be submitted to Home Affairs for registration.
- A customary marriage certificate will then be issued.
Why Registering a Customary Marriage Matters
Registering a customary marriage ensures that the surviving spouse has legal protection, including:
- Inheritance Rights: The spouse will be recognized as a lawful heir under the Intestate Succession Act.
- Pension & Benefits: The spouse can claim benefits from the deceased’s employer, pension fund, or insurance policies.
- Property Rights: Legal proof of marriage can prevent disputes over property owned during the marriage.
Conclusion
While a customary marriage does not require registration to be valid, failing to register it can cause complications, especially after the death of a spouse. If you need assistance in registering a customary marriage, whether through **Home Affairs** or the **High Court**, our firm is ready to guide you through the legal process. Contact us today for expert legal assistance.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Please consult an attorney for specific legal guidance regarding your case. Get in touch with our offices for expert and personalised advice on the above at info@mjmattorneys.co.za or call 015 023 0013/ 079 809 1300.