WHAT ARE THE REQUIREMENTS FOR A VALID CUSTOMARY MARRIAGE?
by Lungelo Mokoena
A customary marriage is defined as a union that is negotiated, celebrated and concluded in terms of indigenous African customary law. Customary law is an amazing part of the South African law which governs the laws relating to customary marriages (also referred to as a traditional marriages). At its core, it is popular for regulating the laws surrounding customary marriage and lobola.
The requirements for a valid customary marriage are as follows:
- lobola must be fixed;
- the marriage must be negotiated, celebrated and concluded in terms of customary law;
- the couple must be consenting adults, If one or more of the parties are minors (below the age of 18 years), both his/her parents or legal guardian/s must give consent to the marriage;
- the parties must be competent to marry each other, meaning that they must not be blood relatives;
- neither of the parties should already be in a civil marriage.
A customary marriage must be registered at the Department of Home Affairs within three (3) months of concluding it. The Department of Home Affairs will issue a marriage certificate.
It is very important to bear in mind that failure to register the marriage does not deem it invalid. The marriage will be legally binding even if the parties fail to register the marriage at The Department of Home Affairs.
For years, people married to each other by customary marriage would simply walk away from the marriage without formally ending it as they were under the impression that since nothing was signed by them, nor registered, there are no legal implications attached. This is not the case.
How can I protect my assets when I choose to get married in terms of customary law?
A customary marriage is automatically considered to be in community of property. This means that everything each party owns, whether it was acquired before or after the marriage, together with his/her debt now forms part of the joint estate.
Each party also loses the right to dispose of assets as they wish or acquire debt without the other party’s knowledge and consent.
If parties wish for this not to be the case, before lobola negotiations and the ceremony takes place, parties should see an attorney to draw up an antenuptial contract which is a contract that will state what happens to their assets when the marriage ends, particularly by way of a divorce.
How do you end a customary marriage?
A customary marriage needs to be separated in the same way that a western union would be – by means of a divorce. A customary marriage, even if it was not registered with Home Affairs, is legally binding and parties need to approach the court for a divorce order if they wish to end the marriage.
What if the marriage was never registered at Home Affairs?
If the marriage was not registered at Home Affairs, the party wishing to declare the marriage legal and binding (The Applicant) has to make an application to court. The Applicant will have to prove that a marriage took place by producing certain documents:
- letter which was signed by all delegates at the lobola negotiations (keletso ya magadi)
- photos from a ceremony which was performed in line of confirming the marriage (for example ummabo, umembeso, etc)
- witnesses that attended the wedding.
Upon producing the evidence to the court’s satisfaction, the court will order the Minister of Home Affairs to issue a marriage certificate. This certificate is essential to issue divorce proceedings.
What happens is the parties informally separates and remarries?
A customary law marriage is not invalid because one of the spouses entered into a civil union with a third party. In fact, from a legal stand point, the second marriage between the one spouse and third party will be regarded as null and void.
These were the sentiments of the Supreme Court of Appeal in Monyepao v Ledwaba & Others. In this matter, the deceased had married his first wife customarily and then went on to marry his second wife, without having formally divorced his customary law wife. He passed away in 2012 without a Will on how his estate is to be dealt with, leaving an estate of approximately R3.8 million.
Although the deceased’s first wife had remarried someone else, her marriage to the deceased was not dissolve and was very much valid. The fact that they both married other people does not have an effect on their initial marriage, in fact, it invalidates the existence of these marriages.
It is clear that regardless of how each culture deems a marriage to come into effect, parties that no longer wish to still be married to each other are required approach the court for a divorce order, severing ties to the marriage and other legal ties that come about as a result of the said marriage.
Contact our Family Lawyers in Johannesburg for more information and or to book a consult.