Section 2 of the Marriage Act (Chapter 280) is one sentence, and it matters for anyone dealing with a long marriage or an old estate.
Section 2
This Act does not affect the validity or invalidity of a marriage that took place before the commencement date.
“The commencement date” means 21 January 1965, being the date of commencement of the pre-Independence Marriage Act 1963.
What section 2 does, and does not do
| Position before 21 January 1965 | Effect of the Act |
|---|---|
| The marriage was valid under the law then applicable | Remains valid. The Act does not disturb it, even if it would not satisfy the Act’s requirements |
| The marriage was invalid under the law then applicable | Remains invalid. The Act does not cure it |
Section 2 does not say pre-1965 marriages are valid. It says the Act does not affect their validity or invalidity, either way.
The consequence is that the validity of such a marriage is determined by the law — including the custom — that applied at the time it took place, not by the Marriage Act.
Customary marriages and section 3
Section 3(1) provides that a native “may enter, and shall be deemed always to have been capable of entering” into a customary marriage.
The words “shall be deemed always to have been capable” operate retrospectively on capacity. They remove any argument that, before 1965, a person lacked legal capacity to contract a customary marriage.
What section 3 does not do is deem the requirements of any particular custom to have been met. That remains a question of fact, on the custom applicable at the time.
The practical result is that a customary marriage made before 1965 in accordance with the applicable custom is a valid marriage today.
When the question arises
- Deceased estates. Whether a surviving spouse of a long marriage is a lawful spouse, and whether children are legitimate.
- Land and clan membership. Where rights descend through a marriage line, the validity of an old marriage can determine entitlement.
- Superannuation and benefits. Where a scheme pays a “spouse” or “dependant”.
- Later marriages. Whether an old marriage subsisted at the date of a later one, and so whether the later marriage is void under section 17 or amounts to bigamy.
- Legitimation. Whether children were legitimated by a subsequent marriage of their parents — see legitimation.
Proving a marriage from that period
For a marriage more than sixty years old, the participants and witnesses will usually have died, and no record may exist. Proof depends on:
- Evidence from surviving family members and community elders about what was done;
- Evidence of the custom applicable at that time and place;
- Bride price records or recollection;
- Long cohabitation and repute — the parties having lived together and been treated as married for decades;
- Church, mission, plantation, hospital and school records describing the parties as married;
- The children and how they were held out.
Where both parties to an old marriage are alive, section 71(2)(b)(iii) allows a second Part V ceremony where there is a doubt whether the marriage could be proved in legal proceedings — on a statutory declaration setting out the date, place and circumstances, with a lawyer’s certificate that a doubt exists.
Alternatively section 71(8) allows parties to a customary marriage to go through a Part V ceremony directly, if neither has another subsisting customary marriage. Either route produces a certificate.
For elderly couples with property or children, obtaining a certificate now avoids a difficult estate dispute later.
Other transitional points
Section 23 of the Act deals with the validity of certain marriages, and section 53 with foreign legitimations. Section 19 addresses prohibited degrees arising from adoption, which can turn on adoptions made long ago under earlier legislation.
On the continuation of pre-Independence legislation generally, and the reading of terms such as “native”, see the Constitution.
Sources
- Marriage Act (Chapter 280) — ss 1, 2, 3, 17, 19, 23, 52–54, 57, 71
- Constitution — Schedules 1 and 2; Customs (Recognition) Act (Chapter 19)
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.