Understanding customary marriages – it is not as straight forward as it seems

May 1st, 2021
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The topic of customary marriage under South African law has been debated and considered extensively through different media and lately it has been the subject of debate on television and social media platforms.

Customary marriages were first recognised in South African law through the Recognition of Customary Marriages Act 120 of 1998 (RCMA). Although recognised in law, the operation, application and subsistence thereof remains a subject for interpretation.

What is customary marriage?

Customary marriages come about through a series of events or principles derived from different customs and traditions.

A customary marriage is one that is concluded in accordance with customary law, and the RCMA defines ‘customary law’ as ‘the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples’.

However, for a customary marriage to be considered valid in terms of the RCMA, some requirements must be met, namely –

  • the prospective spouses must be above the age of 18 years;
  • both spouses must consent to be married to each other under customary law; and
  • the marriage must be negotiated and entered into or celebrated in accordance with customary law.

The requirement that ‘the marriage must be negotiated and entered into or celebrated in accordance with customary law’ is one that has proven to be problematic in its application as it has created uncertainty and ambiguity on whether lobola negotiations alone are sufficient to conclude a valid customary marriage or whether a celebration of such marriage is required in accordance to customary law.

In this article, I unpack the requirement that the marriage must be negotiated and entered into ‘or’ celebrated in accordance with customary law:

The ‘or’ in the above sentence implies that the marriage can either be celebrated or not, namely, a celebration is not a prerequisite for the valid existence of the marriage.

The marriage must be ‘negotiated and entered into’ in accordance with customary law. This could generally mean that lobola negotiations are held, and parties enter into a marriage in terms of their customs, which could entail introducing a bride or exchange of gifts. It is this portion ‘and enter into or celebrated’ that creates certain challenges in the application as one could interpret this to mean that following lobola negotiations, there must be certain traditions that are performed, which could very well be the celebration of the marriage or handing over of the bride, and on the other hand, the contrary can be argued.

In the case of M v K (LP) (unreported case no 2017/2016, 7-11-2018) (Makgoba JP), the High Court considered whether the handing over of the bride is an element to be taken into account when considering the validity of a customary marriage, and provided that the mere fact that lobola was handed over to the bride’s family – significant as it is – is not conclusive proof of the existence of a valid customary marriage. The handing over of the bride is not only about celebration with the attendant feast and rituals. It also encompasses the essential aspect associated with the married state, namely ‘go laya’ that is coaching or briefing of both the bride and groom by the elders of their rights, duties and obligations, which a marriage imposes on them. The court regarded this as the most important and final step in the chain of events.

The court held that the handing over of the bride is what distinguishes mere cohabitation from marriage. Until the bride has formally and officially been handed over to the groom’s people, there can be no valid customary marriage. Based on this argument the court found that there was no valid customary marriage entered into between the plaintiff and the defendant, despite the payment of lobola in full by the plaintiff there has not been any handing over of the defendant to the plaintiff.

There are several High Court decisions where the ruling is similar or aligned to the views held in the above-mentioned case. However, we have seen contrary interpretations through the lens of the Supreme Court of Appeal (SCA).

In Tsambo v Sengadi (SCA) (unreported case no 244/19, 30-4-2020) (Molemela JA (Maya, P and Mbha and Zondi JJA and Mojapelo AJA concurring)), the SCA found that the custom of the handing over of the bride was an important element, but not a key determinant of a valid customary marriage. The SCA shed some insight into the fact that certain customs, which were practiced long ago, have been replaced with western customs. The court stated that rituals and customs have never been static or frozen in time, as they develop and change along with the society in which they are practiced. The insights of the SCA teaches us that customs are not static, the world is evolving, and times have changed. Accordingly, customs as they were applied in ancient times cannot strictly be applied in the same manner and form in the modern age because such strict application may result in undesirable consequences.

In Mbungela and Another v Mkabi and Others [2020] 1 All SA 42 (SCA), the SCA highlighted that ‘the importance of the observance of traditional customs and usages that constitute and define the provenance of African culture cannot be understated. Neither can the value of the custom of bridal transfer be denied. But it must also be recognised that an inflexible rule that there is no valid customary marriage if just this one ritual has not been observed, … especially spousal consent, have been met, … could yield untenable results’. The SCA held that the purpose of the ceremony of the handing over of a bride is to mark the beginning of a couple’s marriage and introduce the bride to the groom’s family. It is an important but not necessarily a key determinant of a valid customary marriage. Thus, it cannot be placed above the couple’s clear will and intent.

It is evident from the interpretations of the SCA that a valid customary marriage will be considered to have been concluded where the parties are of age, consented to the marriage, and lobola negotiations took place. To that end, one will be considered to be validly married even though certain customs and traditions were not observed, such as the handing over of the bride.

Registration of a customary marriage

The RCMA provides that a customary marriage must be registered within three months after the conclusion of the marriage. The RCMA further provides in
s 4(9) that a ‘failure to register a customary marriage does not affect the validity of that marriage’. This weakens the requirement for registering a customary marriage as s 4(9) has made registration optional. However, it is highly advisable for a customary marriage to be registered to avoid the trouble of going through the court of law to query the validity of such marriage.

In the unfortunate event of death, unregistered customary marriages may also prove to be problematic to the executor in an estate or the Master when an estate is reported, especially where family members are disputing the validity or existence of the marriage. For this reason, the Master may insist or request proof of registration of a customary marriage as it serves as proof of the existence of the marriage.

Proprietary consequences of customary marriages

Section 7(1) and (2) of RCMA provides:

‘(1) The proprietary consequences of a customary marriage entered into before the commencement of this Act continue to be governed by customary law.

(2) A customary marriage entered into after the commencement of this Act in which a spouse is not a partner in any other existing customary marriage, is a marriage in community of property and of profit and loss between the spouses, unless such consequences are specifically excluded by the spouses in an antenuptial contract, which regulates the matrimonial property system of their marriage.’

Parties married under customary law are married in community of property unless such consequences are specifically excluded in an antenuptial contract, which regulates the matrimonial property system of their marriage. In other words, if parties to a customary marriage do not conclude an antenuptial contract before entering into the said marriage, such marriage will be in community of property. It is, therefore, advisable that if parties to a customary marriage intend to be married out of community of property, they must conclude an antenuptial contract before the marriage is entered into.

The contentious position of the RCMA in respect of the proprietary consequences of a customary marriage is that it does not deal with the marital property rights of spouses in polygynous marriages entered into before the commencement of the RCMA. Consequently, this means that polygynous marriages are still governed by customary law.

In Gumede v President of the Republic of South Africa and Others 2009 (3) BCLR 243 (CC), the Constitutional Court (CC) debated and put forward that any distinction between proprietary consequences of customary marriages entered into before and/or after the RCMA came into effect is discriminatory and inconsistent with the Constitution.

In Ramuhovhi and Others (Maphumulo as Intervening Party) v President of the Republic of South Africa and Others (Trustees of the Womens’ Legal Centre Trust as amicus curiae) 2018 (2) BCLR 217 (CC), the CC found that s 7(1) limits the right to human dignity and not to be unfairly discriminated against. Accordingly, the court held that ‘[p]ending the remedying of the legislative defect, a husband and his wives in pre-Act polygamous customary marriages would share equally in the right of ownership of, and other rights attaching to, family property, including the right of management and control of family property; and a husband and each of his wives in each of the marriages constituting the pre-Act polygamous customary marriages must have similar rights in respect of house property’.

In July 2019, the Cabinet approved the submission of the Recognition of Customary Marriages Amendment Bill B12 of 2019. The Bill aims to amend s 7(1) and (2) of the RCMA to ensure alignment with the judgments of the CC.

Dealing with divorce

It is a common understanding that under many customs and traditions, ‘divorce’ is not recognised where a customary marriage is concerned. To address the unfavourable consequences of this ‘understanding’, the RCMA makes provision for the dissolution of a customary marriage.

Section 8 of the RCMA provides that ‘[a] customary marriage may only be dissolved by a court by a decree of divorce on the ground of the irretrievable breakdown of the marriage’. Important to note is that the RCMA does not provide that such marriage must be registered before it can be dissolved. Therefore, all valid customary marriages, whether registered or not, can be dissolved by the court.

Despite provisions being made in the RCMA for a dissolution of a customary marriage, many couples married under customary law informally separate and move on with their lives respectively, without formally getting a decree of divorce. The issue with such informal separation is that such couples are unaware that despite their informal separation, they are still considered to be validly married to each other.

As most customary marriages are in community of property (where an antenuptial contract was not concluded), couples that just separate informally are not aware that they remain legally entitled to an equal division of the joint estate and to claim certain benefits from the other party. Failure to dissolve a customary marriage may also create barriers for a party that wants to marry again; for example, a spouse in a customary marriage will be prevented from entering into a civil marriage with another during the subsistence of a customary marriage.

Conclusion

As much as the RCMA has addressed many imbalances of the past and gender inequalities relating to certain aspects of customary marriages, it is clear that South African communities still lack the required knowledge of the operation and application of the RCMA.

It is advisable for couples married under customary law to:

  • Register their marriage as it serves as proof of the existence of the marriage.
  • Conclude an antenuptial contract before the marriage is entered into if they wish to be married out of community of property.
  • Obtain a divorce through the court in situations where the marriage has broken down.
  • Seek legal advice to ensure that informed decisions are taken.

Portia Mashinini LLB (Wits) Higher Cert in Financial Products (Milpark) RE1 (Moonstone) Fundamentals of Business Admin (Wits) is a senior legal adviser at Hollard in Johannesburg.    

This article was first published in De Rebus in 2021 (May) DR 24.

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