Source: Shando Theron (Theron and Theron’s Divorce and Matrimonial
attorneys in Johannesburg) www.divlaw.co.za, shando@divlaw.co.za
Introduction:
A customary marriage is one where the spouses are
married in terms of custom as opposed to the laws of a country, usually
referred to a as civil marriage. Civil marriages are registered with Home
Affairs and usually the couple are provided with a marriage certificate. Civil
marriages are not the only types of marriages recognised in our law in South
Africa. Customary marriages are also given recognition provided certain
requirements are met.
Requirements for entering into a customary marriage:
The Recognition of Customary Marriages Act 120 of
1998, came into operation on November 15, 2000, and set certain legal
requirements for a valid customary marriage.
1.
Capacity to enter
into a customary marriage:
The
parties must both be over the
age of 18 years. If not, special written consent from the Minister of
Home Affairs must be obtained. Men are allowed to have more than one wife but
woman are not allowed to have more than one husband.
2.
Consent of the
bridegroom and bride:
The
consent of the bridegroom and bride to enter into a marriage under customary law
is necessary. This consent does not have to be given formally but can be
implied from their conduct.
3.
Consent of the father
(or guardian) of the bride:
The
consent of the father of the bride is essential, although this requirement is not expressly stated in the Act,
it can however be read into s 3(1)(b) which states that: “the marriage has to be negotiated and
entered into in accordance with customary law”. In the case of Mabena v Letsoalo where the father of
the bride had abandoned the family, the consent of the mother was held to be
sufficient. It was also decided in the same case that the consent of the
parents of the bridegroom was not necessary.
4.
Payment of Ikhazi /
Lobolo:
The
general rule is that payment of Lobolo is an essential requirement in
concluding a customary union. Payment is made to the bride’s father or the head
of the household. There are certain exceptions to this rule. For example, where
the marriage is scheduled to take place during a period of mourning for a
deceased Head of a tribe.
In modern
and urban circumstances the Ikhazi or Lobolo is not paid in cattle, but the
monetary equivalent of the cattle, i.e. money.
5.
The handing over of
the bride:
The bride
must be handed over to the bridegroom by her family or a designated member.
Where a second marriage is being entered into, is consent from a first
wife required?
In
customary marriages, men are allowed to have more than one wife which is not
the same for women who are limited to marrying one husband.
What is not necessary for a valid customary marriage?
Contrary to popular belief the law does not require
the ukutyis amasi ceremony (the
drinking of the sour milk), nor the slaughtering of a beast, for the valid consummation
of the marriage.
Termination of a customary marriage after 20
November 2000:
The Act imposes a duty on spouses in a customary
marriage to register the marriage with 3 months after the marriage (as proof of
the marriage) at Home Affairs.
It is important to note that non registration does
not make the marriage invalid, and there is no penalty for non-registration.
Once the marriage is valid and in existence, the
marriage can only be dissolved by a court through a decree of divorce on the
grounds of an irretrievable breakdown of the marriage, as that of a civil
marriage, as per section 8(1) of the Act.
A further important point to note is that in terms
of section 7 of the Act, all customary marriages are in community of property,
unless such consequences are specifically excluded in terms of an antenuptial
contract.
CONCLUSION:
A lot of uncertainty still exists especially
amongst the different tribal customs, but the law is dynamic, ever growing and
developing and the contribution yet to be made by all the above customs which makes
the practice of matrimonial law one of the most exciting and interesting areas
of law.
