Customary marriage: Marriage is a beautiful thing

Marriage is a beautiful thing to behold, and South Africa has taken a shine to the saying, marriage is in the eye of the beholder. South Africa has in recent years taken strides towards the recognition of Customary Marriages, and the practices of cultures throughout the country. This has culminated in our very own Recognition of Customary Marriages Act 120 of 1998.

Under South African law, a customary marriage is a marriage that has been concluded in terms of the customary traditions of a certain culture. These marriages are concluded in terms of the customs and usages that are traditionally observed among the indigenous people of South Africa. The customary marriages are recognised, and the further traditions of the culture during the marriage is expected to be followed.

Customary marriages are regulated in terms of the Recognition of Customary Marriages Act 120 of 1998 (referred to as “the Act”). Prior to the implementation of the Act on 15 November 2000, the principles that governed customary marriages either did not recognize certain cultural marriages, or limited prospective spouses to the ways in which they could be married. Hence, the Act was implemented with the purpose to provide legal recognition for customary marriages and provide the spouses with opportunities to utilise the law to protect their marriage and interests.

Legal Requirements of customary marriages

The legal requirements for a customary marriage starts firstly that in terms of Section 3(1) of the Act, for persons to conclude a valid customary marriage, the prospective spouses must both be above the age of 18 years. Further, both parties must give their consent to be married to each other under customary law. The marriage can then be negotiated, entered into or celebrated in terms of the dictating customs.

A further important point, is that the marriage should be concluded in terms of the customary practices of the culture, as far as reasonably possible. Both spouses should be willing, and continue to endeavour the marriage in terms of the customs and practices of the culture, in as far as it is not an infringement of one or the other’s constitutional rights.

Spouses must also register their customary marriage at the Department of Home Affairs, however, failure to register the marriage does not fully impede the legality of a customary marriage. A customary marriage entered into, but which was not registered is still legally binding, and the parties will still have to proceed with a divorce, should it come to that. The importance of registering a customary marriage, is that it makes it easier in instances such as to claim for maintenance, or to have a claim against your spouse’s estate should they become deceased, or even to claim as a person dependant on your spouse in cases such as a motor vehicle accident.

Application of the legal requirements of customary marriages

Handing-over of the bride

A this point the parties have both agreed to be married in terms of the customs of the culture they have chosen, but what happens if they do not follow all the rituals of the culture at the celebration of the marriage or during the marriage itself?

There are certain rituals and customs that must be observed during the conclusion of a customary marriage, which are of utter importance. The courts recently shed some light on the effect of not observing all the required rituals and customs for the conclusion of a customary marriage.

In the case of Mbungela and Another v Mkabi and Others (820/2018) [2019] ZASCA 134, the court had to consider whether a valid customary marriage was concluded where the parties had not observed the custom of the bride’s family handing over the bride to groom’s family.

The court held that it is of utmost importance for African cultures that rituals and customs are observed, including the custom of handing over the bride, however, it would be detrimental to invalidate a customary marriage due to the inflexible application of one or two customs.

Further, in this specific case, the court held that the purpose of the handing over of the bride custom is to introduce the bride to the groom’s family, and although it is important, it does not take away the validity of the marriage.

Therefore, a customary marriage will still be considered as valid when one or more customs have not been observed, provided that the parties to the marriage were above the age of 18 years, consented to the marriage and it was agreed upon.

Lobola

A good example of this, can be found in the practice of lobola. Even though Lobola forms part of the requirements of a customary marriage, it does not, in itself, constitute a marriage but rather it is part of the process of getting married under customary law. Hence, despite the full payment of lobola not being completed, does not invalidate a customary marriage, and a Court will still recognise the marriage.

This was further confirmed in the case of Mbungela v Mkabi, where the court held that taking into consideration the evolution of Customary Law throughout the years, a customary marriage concluded without the payment of lobola should still be considered as valid.

Proprieatary consequences of customary marriages

Any customary marriage concluded before the commencement of the Customary Marriages Act, will be governed in terms of the cultural uses of the marriage.

Since the inception of the Recognition of Customary Marriages Act, should a customary marriage be entered into, and where none of the spouses are a partner in any other existing customary marriage, it is automatically held that the marriage is concluded in community of property.

Should the aspiring spouses wish to conclude their customary marriage under a different marriage regime they must do so in terms of an antenuptial contract. It is important that this antenuptial contract must be concluded and registered before the conclusion of the customary marriage as failure to do so will result in a marriage in community of property.

Dissolution of a customary marriage

A customary marriage may only be dissolved by a court by a decree of divorce on the grounds of irretrievable breakdown of the marriage. Even should the spouses have separated and are no longer living together, only a decree of divorce will legally separate them. Should the spouses not have acquired this decree of divorce, they will still be legally married in the eyes of the law.

 

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.