Theme 6: Customary Law Sections

Question 1

Section 1 of the RCMA

Answer 1

1) Customary law amounts to those customs and usages which are traditionally observed among the indigenous peoples of South Africa and which form part of the culture of those people

Question 2

Section 2 RCMA

Answer 2

1) A marriage which is a valid marriage at customary law
and existing at the commencement of this Act, is for all
purposes recognised as a marriage.
2) A customary marriage entered into after the commencement of this Act, which complies with the requirements of this Act, is for all purposes recognised as an marriage.
3) If a person is a spouse in more than one customary marriage, all valid customary marriages entered into before the commencement of this Act are for all purposes recognised as marriages.
4) If a person is a spouse in more than one customary marriage, all such marriages entered into after the commencement of this Act, which comply with the
provisions of this Act, are for all purposes recognised as marriages

Question 3

Section 3 of the RCMA – Requirements for valid marriage

Answer 3

1) Both spouses must be above 18 years
2) Both must consent to be married to each other customary law.
3) The marriage must be negotiated and entered into or celebrated in accordance with customary law

Question 4

Prohibition of Forced Marriages and Regulation of
Related Matters Bill

Answer 4

1) Victims of forced and child marriages or any person may apply for protection.
2) Furthermore, courts may in addition to any punishment which it imposes order a person convicted of such an offence to pay appropriate compensation to the victim of the offence for any damages which they have suffered

Question 5

Section 24A(1) of the Marriage Act

Answer 5

1) The marriage shall be dissolved by a competent court,
2) on application by the parent/guardian, before the minor reach majority and
3) within 6 weeks of getting to know
about the marriage, or by the minor

Question 6

Section 3(3)(b) of the RCMA

Answer 6

1) If the consent of the parent or legal guardian cannot be
obtained then section 25 of the Marriage Act, is applicable.
2.1) It is required where:
2.2) No parents or guardians; or
2.3) Good reasons exist why the consent of
parents/guardians cannot be obtained.
3) It replaces the consent of the parents or guardian.
4) The marriage is voidable without the consent of the
Presiding Officer.

Question 7

Alteration of Sex Description and Sex Status Act

Answer 7

1) Any person whose sexual characteristics have been altered or who is intersexed may apply to the Department of Home Affairs for the alteration of the sex
description on his or her birth certificate

Question 8

Section 3(6) of the RCMA

Answer 8

1) The general rule is that people with the same ancestral surname or clan are not permitted to marry each other, even
if they are not biologically related

Question 9

Section 3(1)(b) of the RCMA

Answer 9

1) Marriage must be negotiated and entered into or celebrated in accordance with customary law

Question 10

Section 7(2) of the RCMA

Answer 10

1) Marriage is in community of property if there is no antenuptial contract.
2) It has the same consequences as a civil marriage.
3) It does not matter if concluded before or after the RCMA

Question 11

Section 7(7) RCMA

Answer 11

1)Terminate the matrimonial property
system which is applicable to the marriage;
and
2) Effect a division of the matrimonial
property.
3) Ensure an equitable distribution of the
property; and
4) Take into account all the relevant
circumstances of the family groups which would be affected if the application is granted.

Question 12

Altering the Property System (Before the RCMA)
Section 7(4)(a) RCMA

Answer 12

1) Monogamous and polygynous customary marriages concluded before the RCMA may voluntarily apply for the alteration provided that they meet the requirements.
2) The Requirements include:
3) Sound reasons
4) Sufficient written notice to all creditors for amounts exceeding R500.
5) If no 3rd party is prejudiced by the change

Question 13

Section 7(4)(b) RCMA

Answer 13

1) Where the husband is a spouse in more than one customary marriage, all persons having sufficient interest in the matter, and in the particular applicants existing spouse or spouses must be joined to the
proceedings.

Question 14

Section 7(5) RCMA

Answer 14

1) Section 21 of the MPA is applicable to a customary marriage entered into after the commencement of this Act in which the husband does not have more than one
spouse (monogamous)

Question 15

Section 8 RCMA

Answer 15

A customary marriage may only be dissolved by a court
by a decree of divorce on the ground of irretrievable of the
marriage

Question 16

Section 24(1) of the MPA

Answer 16

1) If a court dissolves a marriage to which a minor is a party on the ground of want of consent of the parents or guardian of that minor, or a commissioner of child welfare whose consent is by law required for the entering into of a marriage, it may make such order with regard to the division of matrimonial property of the spouses as it
may deem just.

Question 17

Section 6 of the Divorce Act

Answer 17

1) Is satisfied that the divorce is satisfactory or the best that can be effected in the circumstances for the minor/dependent children.
2) If an enquiry is instituted by the Family Advocate has considered the report and recommendation referred to in the said section 4(1)

Question 18

Section 8(4)(d) RCMA

Answer 18

1) A court granting a decree for the dissolution of a customary marriage may make an order with regard to the custody or guardianship of any minor child of the
marriage

Question 19

Section 7(1) Divorce Act

Answer 19

1) A court granting a decree of divorce may in accordance with a written agreement between the parties make an
order with regard to the division of the assets of the parties or the payment of maintenance by the one party
to the other

Question 20

Section 7(2) Divorce Act

Answer 20

The means of each party.
* The earing capacities of the parties.
* Financial needs and obligations.
* Age of the parties.
* Duration of the marriage.
* Standard of living of the parties prior to divorce.
* Their conduct in so far as it may be relevant to the
break-down of the marriage.
* Any other factor which the court considers to be
relevant.
▪ Here they may consider existing and prospective
means.
▪ They will consider respective earning capacities and
rehabilitative maintenance.

Question 21

Section 7(7)(a) of Divorce Act

Answer 21

1) In the determination of the patrimonial benefits to which the parties to any divorce action may be entitled, the pension interest of a party shall, subject to paragraphs (b) and (c), be deemed to be
part of his assets

Question 22

Section 7(7)(c) of Divorce Act

Answer 22

1) Paragraph (a) shall not apply to a divorce action in respect of a marriage out of community of property entered into on or after 1 November 1984 in terms of an antenuptial contract by which community of property, community of profit and loss and the accrual system are excluded

Question 23

Section 7(8) of the Divorce Act

Answer 23

The Court granting a decree of divorce in
respect of a member of such fund, may make an order that:
1) Any part of the pension interest
2)