‘KUTEKA AFTER DEATH OF SPOUSE UNLAWFUL’

MBABANE – In what may come as a shock to many, it has been declared unlawful to traditionally wed a spouse in death and further apply for a marriage certificate.

It has been a practice, for many emaswati, to marry their spouses post-humously due to varying reasons and further apply for a marriage certificate.
As it is, the Ministry of Home Affairs is facing an influx of Emaswati coming to apply for marriage certificates after one of the spouses has passed on.
This was revealed by Principal Secretary in the Ministry of Home Affairs Nhlanhla Nxumalo.

He said there were two lawful types of marriages in the Kingdom of Eswatini; civil rites and Swazi law and Custom.
Nxumalo said the ministry, through civil registration department, only registered marriages that were solemnised within the kingdom of Eswatini and Swazi law and custom marriages must be registered within 14 days while civil rites within seven days after being solemnised.

“The ministry wishes to advice and encourage citizens and families not to engage in kuteka or any form of marriage after one spouse (either husband or wife) dies because the ministry cannot register nor issue marriage certificate of events observed in that manner,” he said.

This emanates from a concern that emaswati were not coming to register for marriage certificates and opted to do that after one spouse had died.
The same was addressed at Emseni Umphakatsi in Mkhiweni over a week ago where Umgijimi Simelane encouraged residents to go for registration of the marriage certificates because about two thirds of the wedded couples in the area didn’t have the certificates and it had become habitual to go for them after one of the spouses had died.

Negatively

The PS said non-registration of marriages negatively impacted the national population register in that it could not gather correct statistics of marriages taking place within the country.

He said the legal consequences of such practice were the illegitimacy of such relationships, the inability of the male counterpart to register child birth certificate, and the absence of a birth certificate stating the father and mother’s name in that the child could not establish any legal relation with his or her biological father, including inheritance, thus depriving children of their benefits.

Nxumalo said emaSwati were supposed to register their marriages with the department of civil registration and vital statistics at the ministry.
He said, however, the ministry faced the challenge of non-registration, especially with regard to Swazi Law and custom marriages. Nxumalo stated that according to the law, the chief or his indvuna or umgijimi should forthwith complete, in triplicate a marriage information form (form bmd 4) of such marriage and transmit the original and duplicate copies to the regional civil registrar where the marriage was solemnised within 14 days.

Influx

“On another hand, the ministry is facing an influx of emaSwati coming to apply for marriage certificates after one of the spouses is deceased.
“The ministry is mandated by law (marriage act of 1964) not to register marriages once a spouse is deceased. The husband and wife are both required by law to complete and sign in person form bmd 3 for civil rites and form bmd 4 for Swati law and custom marriages,” he asserted.

Furthermore, he said imiphakatsi (chief/ indvuna/umgijimi) and marriage officers must ensure all marriages taking place in their areas were registered timely.
Moreover, the ministry encourages emaswati to convert their old birth, marriage and death certificate to automated certificates.

He said importantly, emaswati need to recognise that a marriage certificate was the most important document to prove the legal existence of a marriage.
Meanwhile, Ludzidzini acting governor Lusendvo Fakudze dismissed the claim that kuteka for deceased couples or spouse was unlawful.

The traditionalist said a deceased couple could still get lawfully married through kuteka but it was not the same as that of a living couple. He said for a deceased couple, the ceremony was done at egumeni where the family members gather and bind the demonstrators of the deceased couple together while the normal ceremony for a living couple was done in a kaal (esibayeni).

He said a woman could be smeared with libovu (red ochre) even after the death of her would-be husband and become his rightful wife and a man could also wed his dead woman through kuteka.

He further stated that the deceased couple don’t apply for a certificate but they make an affidavit which confirms their marriage through the Ministry of Home Affairs or Master of the High Court.

Beneficiaries

“The marriage for a deceased couple is done to help the beneficiaries of the deceased when disagreements arise.
“The affidavit is recognised in the court of law and it can be produced when the need arises to end a dispute,” he said.

Fakudze made an example of his cousin, who was in a similar situation and got married after the spouse had died.
 He said the affidavit came in very handy at the High Court after there was a row within the family over the deceased’s property.
However, he did mention that not all courts recognised the affidavit as his cousin’s affidavit was initially declared null and void at the traditional court known as Ndabazabantu.

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