It is common practice for parties in the Republic to enter into what is called a traditional/customary marriage. In essence a customary marriage is a marriage that’s entered into in accordance with the traditions and customs of indigenous African customary law.
There has recently been different views and legal cases/opinions pertaining to what is deemed a valid customary marriage. Common question asked in this regard is: is Lobola deemed to constitute a valid customary marriage?
In terms of the Recognition of Customary Act 120 of 1998, the conclusion of the lobola process is not deemed a valid customary marriage however it is an integral part to the conclusion of a valid customary marriage.
In terms of the of the aforesaid Act, the following are listed as the requirements for a valid customary marriage(S3(1)):
- The prospective spouses must be both over the age of 18 years;
- The prospective spouses must both consent to be married to each other under customary law;
- The marriage must be negotiated and entered into or celebrated in accordance with customary law;
- No spouse in a customary marriage shall be competent to enter into a marriage under the Marriage Act, 1961 (Act No. 25 of 1961) during the subsistence of such customary marriage.
- If either of the prospective spouses is a minor, both his or her parents, or if he or she has no parents, his or her legal guardian, must consent to the marriage.
A further question that is asked is whether or not the physical handing over of the bride is necessary to conclude a customary marriage.
The handing over of the bride is generally the process that follows once the Lobola payments/agreements have been concluded. The handing over is usually guised as a ceremony where there’s in essence a physical handing over of the bride from her family to that of the Husband. However,in the popular case of Sengadi v Tsambo (HHP), Judge Mokgoathleng states the following:
“in my view the customary law custom of the handing over has to be developed to the extent that the requirement of the handing over of the of the bride as an essentialia for the lawful existence of a customary law marriage and that the failure to comply with such custom despite having complied with the section 3(1) statutory requirements of the Recognition Act invalidates the validity and existence of the customary law the spouses consented to and had celebrated. In my considered view the requirement of handing over the bride to bridegroom’s family does not pass Constitutional muster as it is not in accordance with the Bill of Rights and it does not promote the spirit, purport and objects of the equality and dignity clauses in the Constitution because this handing over custom as a determinative prerequisite for the existence of a customary law marriage unfairly and unjustly discriminates against the gender of the applicant as a woman and denies her constitutional right of equality and dignity.”
In terms of the aforesaid decision, the Honourable Judge is of the view the handing over of the bride must be deemed unconstitutional and that the mere fact that both parties consented to enter into a customary marriage which was subsequently celebrated is sufficient for it to be deemed a valid customary marriage.
Further. in terms the aforesaid Act, the customary marriage also needs to be formally registered within a certain period. The failure to register the marriage however does not effect the validity of the marriage.
For further information relating to this highly contentious issue, or should you and your partner be entertaining entering into a customary marriage, feel free to contact our office for a consultation. Our first consultation is free of charge*.
As a parting point, unless expressly stated in an Ante Nuptial Contract, a customary marriage is automatically deemed to be in community of property.
Written by Ntuthuko Mgiba (Attorney)