CUSTOMARY MARRIAGES

 

Customary marriages usually start off (however this is not a requirement) by the payment of Lobola. There are various definitions for Lobola, Aeneas Chigwedere from Zimbabwe defines Lobola as “a form of marriage meant to relationships and to demonstrate the ability of a man to take care of his family”. Meaning that Lobola is meant to be good practise, however in this 21st century Lobola has become a gateway to quick riches, and this process has become a big barrier for many young men who wish to marry.

A brief history of Lobola: “The practice of paying “Lobola” (or Lobolo) as part of the marriage process is a tradition in many South African cultures including Xhosa, Zulu, Swazi and Ndebele. Lobola is essentially the “bride price” that the prospective groom must pay to the bride’s family in order to enter into marriage. For centuries cattle has formed the primary currency of Lobola but more recently, cash plays a significant role. However, often, even the cash amount is tendered by way of establishing the price of a cow and how many cows would have been given. Interestingly, historically the Lobola negotiations are attended not by the bride and groom, but by their families, and most often, by the men in the family.  Besides simply coming to a financial agreement, this ritual is said to form a bond between the two families. During the negotiations families who otherwise may not have met, come together to meet and spend time with each other. “

WHAT ARE THE REQUIREMENTS OF A CUSTOMARY MARRIAGE?

A customary marriage is recognised if people getting married under customary law have complied with the following requirements:

Both parties to the marriage must be above the age of eighteen years.

Both parties must consent to being married under customary law.

The marriage must be negotiated, celebrated and entered into in accordance with customary law.

Lobola is not a necessary requirement for the validity of the customary marriage, however, if it is paid, it proves that the marriage was negotiated in accordance to custom. (Note that these marriages have always been recognized under customary law).

WHAT IF ANY ARE THE LEGAL IMPLICATIONS OF A CUSTOMARY MARRIAGE

The Recognition of Customary Marriages Act (“RCMA”) became law on 15 November 2000. If you were in an existing customary marriage before this date, your marriage is still recognised under the new law, as the RCMA has retrospective effect.

Subsequent to the commencement of the RCMA, all customary marriages conducted before or after 15 November 2000 must be registered with the Department of Home Affairs. In a case where a party was married after the law was passed, they should register their marriage within three months after the date of the marriage.

It is important to note that since the commencement of the RCMA, if the customary marriage is monogamous – meaning there is only one wife – failure to register the marriage does not invalidate the marriage. However, failure to register any subsequent marriages will invalidate these marriages. Hence, non-registration of customary marriages when there is more than one wife will invalidate all marriages, except that of marriage to the first wife. Registration is therefore encouraged as it constitutes prima facie proof of the existence of a customary marriage.

Even though customary marriages should be registered within three months of the date of the marriage, parties who miss this date may still register their marriage by approaching the Department of Home Affairs.

The purpose of the Act is to ensure equal rights to those married in accordance with customary law. However, the responsibility of registering the marriage, and entering into an antenuptial contract, lies with the couple who are to marry.

WE WANT TO SEPARATE. HOW WILL OUR ASSETS BE DIVIDED?

The proprietary consequences are regulated by section 7 of the Act.

Section 7 (2) of the Act reads:

“A customary marriage entered into after the commencement of this Act in which a spouse is not a partner in any other existing customary marriage, is a marriage in community of property and of profit and loss between the spouses, unless such consequences are specifically excluded by the spouses in an antenuptial contract which regulates the matrimonial property system of their marriage.”

If there is no other spouse, then the marriage is in community of property. This means that there is one common estate that needs to be divided equally upon divorce.

If there are two or more spouses, Section 7(6) of the Act applies

“A husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of this Act must make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriages.”

For more information on this or any other legal related queries please contact us at 033 392 8000

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