Customary law originates from the customs and practises that are observed and practiced by Indigenous African communities of South Africa, later legislated into law. In accordance to the Recognition of Customary Marriages Act[1] (“the Act”) Customary law is defined as the usages traditionally observed among the indigenous African people of South Africa which forms part of their culture. Customary law caters for indigenous African people and therefore applies to African people who practise African Customs. If indigenous African people wish to enter into a marriage observing African customs, they are considered to be married under Customary law. This marriage will be governed by the Recognition of Customary Marriages Act which provides guidance on the requirements and consequences of a customary marriage. This act however has relaxed requirements for a valid customary marriage which conflict with certain indigenous customs and causes confusion as to when is a person considered married in terms of the law, and when is a person considered married in terms of customs. The aim of the article is to provide clarify on this point of confusion.
WHO IS MARRIED UNDER THE RECOGNITION OF CUSTOMARY LAW ACT
In order for a customary marriage to be valid the Recognition of Customary Marriages Act states that :
(i) both the parties must be above the age of 18 years
(ii) the parties must both consent to be married to each other under customary law; and
(b) the marriage must be negotiated and entered into or celebrated in accordance with customary law.
Above are the requirements for a valid customary marriage in terms of the law. This legal position is distinct and varies from the customs traditionally observed by different South African ethnic groups. This has resulted in many legal disputes owing to the different marital practices observed throughout the heterogenous South African society. The requirements for a valid customary marriage have been significantly relaxed compared to traditional customs historically observed by different communities. In many cases, one spouse believes that they have entered into a legally recognized customary marriage, while the other considers themselves only engaged and not yet married. These differing interpretations highlight the complexities arising from the legal framework and its impact on customary traditions.
UNSURE WHETHER A VALID CUSTOMARY MARRIAGE HAS BEEN ENTERED
From the clearness of the first two requirements in the Act and a brief analysis of case law, it’s notable that the third requirement for the validity of a customary marriage has led to many confusions and challenges amongst indigenous communities.
The requirements reads as “the marriage must be negotiated and entered into or celebrated in accordance with customary law”. In analysing the requirement, the confusion comes when it reads that the must have been a negotiation or a celebration, “or” causing the confusion as it may be interpreted as allowing a mere negotiation to entail the conclusion of a customary marriage or a celebration. In observed customs, a negotiation would be a lobola negotiation. A lobola negotiation in observed customs is followed by the completion of the negotiated lobola price as well as other custom practises based on the culture observed. There is a school of thought which considers to be married once all the customs have been completed. However, in terms of the law and jurisprudence which continues to be developed by our courts, the requirement of negotiations or a celebration has been significantly relaxed.
In the case of R.M.M v E.J.M the courts were tasked with establishing whether lobola has to be fully paid in order for a customary marriage to be valid in accordance with the requirement of the Act. The courts relying on the reportable case of Tsambo v Sengadi ruled that lobola does not need to be fully paid in order for a customary marriage to be valid[2] .
“historically, significance was paid to the conclusion of the lobola agreement, and not necessarily the full payment of lobola, ”.
In Tsambo v Sengadi[3] the courts were seized to decide whether a valid customary marriage had been concluded in accordance with the Act, in circumstances where there was no handing over of the bride ceremony. The court ruled that the handing over of the bride ceremony as a custom is not a requirement for the validity of the customary marriage, provided that the marriage was negotiated into and celebrated in accordance with customary law. The courts stated that it follows ineluctably that the failure to strictly comply with all rituals and ceremonies that were historically observed cannot invalidate a marriage that has otherwise been negotiated, concluded or celebrated in accordance with customary law.[4] This case clarifies that although not all customs were observed, if the three requirements in the Act have been observed, then a valid customary marriage has been concluded.
Should you meet the three requirements of a valid customary marriage highlighted above then yes, you are married in accordance with Customary law.
WHAT TO DO AFTER ESTABLISHING THE EXISTENCE OF A VALID CUSTOMARY MARRIAGE
A customary marriage needs to be registered with home affairs within the first three months of the conclusion of the marriage where a marriage certificate will be issued, however the absence of a marriage certificate and failure to register a customary marriage does not affect the validity of a customary marriage. It is notable that African Customs and traditions do not regard individuals as being married over bare negotiations of marriages, certain actions must follow such as completing the bride price or the handing over of the bride ceremony. However, the law establishes that negotiations to enter into a marriage or celebrations of the marriage are enough for people to register a customary marriage, and to be awarded the benefits of a marriage. It is recommended that people register their marriages to avoid later disputes over the benefits of the marriage and the validity of a marriage.
BENEFITS OF A CUSTOMARY MARRIAGE
Differing to civil marriages where spouses can elect to be married out of community of property, customary marriages are automatically deemed as marriages in community of property and of profit and loss between the spouses. This means that spouses in the marriage have a joint estate and share their assets together in equal shares, unless they have an ante nuptial contract. The marriage in community of property regime is governed by the Matrimonial Property Act. This act places restrictions on spouses married in community of property on how they can dispose of assets in the joint estate. A spouse requires the written consent from the other spouse to dispose of assets in the joint estate as spouses are seen as equal in the marriage and have equal rights to the joint estate.
Should the spouses divorce or one spouse be deceased, then the joint estate will be dissolved in accordance with the Matrimonial Property Act, where the best interests of the children is considered and assets are divided accordingly.
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[1] 120 of 1998
[2] R.M.M v E.J.M and Others (20528/2019) [2020] ZAGPPHC 291 (25 June 2020) para 34
[3] Tsambo v Sengadi 244/19) [2020] ZASCA 46 (30 April 2020).
[4] Ibid, para 18
