In South Africa there are two types of recognized marriages: Civil Marriages and Customary Marriages.
The requirements of a valid customary marriage are set out in section 3(1) of the Recognition of Customary Marriages Act. These requirements are:
The marriage must be entered into between a man and a woman who are both 18 years or older;
The parties must have the intention to conclude a marriage under customary law; and
The marriage must be negotiated, celebrated and entered into in accordance with Customary Law.
The Act is silent on what exactly constitutes the requirements and customs which must be complied with in order for a valid customary marriage to come into existence. This has resulted in a litany of litigation over the years. This lacuna in the Act perhaps exists because the codification of the requirements is almost impossible in a society as diverse as South Africa. Three issues have proven to be especially contentious they are:
The payment of property in cash or kind which a prospective husband or head of his family undertakes to give to the head of the prospective wife’s family in consideration of a customary marriage is referred to as Lobola. Lobola is an essential requirement for the conclusion of a valid customary marriage. Our Courts have found that even partial payment of Lobola constitutes sufficient compliance with this requirement for the conclusion of a customary marriage.
2. Transfer of the bride
In a recent High Court judgment, it was found that the transfer (or handing over) of the bride to the family of her husband constitutes an unlawful custom as it unfairly and unjustly discriminates against the gender of the woman and denies her the constitutional right of dignity and equality because only women, after consenting to enter into a customary marriage are subject to this unequal treatment by the custom of handing over. Therefore bridal transfer does not validate a customary marriage.
3. Registration of the marriage
The Act states that the parties to a customary marriage may register a customary marriage. Therefore, failure to register a customary marriage does not render the marriage invalid.
Whether a valid customary marriage exists or not is a question that obviously impacts upon the proprietary consequences of the marriage. The Act provides that all Customary marriages have the effect that the parties are married in community of property unless an antenuptial agreement is concluded before the conclusion thereof.
To ensure certainty about the status of your customary marriage, rather contact us to help you draw up an antenuptial agreement; alternatively, the marriage must be registered within three months after the conclusion thereof.
If you are uncertain about the existence, validity or patrimonial effects of your customary marriage we can assist in ascertaining the status of your marriage and in instituting any applications and/or actions necessary to gain clarity on the subject. We understand that the status of your marriage not only has a lasting effect on you as spouse, but also on the legacy of your children.