Getting married has different meanings to different people in South Africa. For some, a traditional wedding might mean a fancy white dress and a long walk down the aisle, while for others, it is more of a colourful celebration of heritage and age-old African customs. But, no matter how we celebrate love and commitment in all its diversity, getting married is always a legal affair. South African laws don’t just recognise and protect civil marriages, but also customary marriages as long as specific requirements are met as set out in what is known as the Customary Marriages Act 120 of 1998.
What is a Customary Marriage in South Africa?
By definition, a customary marriage is a union that is negotiated, celebrated and concluded in terms of indigenous African customary law. While many African cultures in South Africa require the exchange of lobola or magadi, the wedding celebrations differ from community to community and could include song and dance, the slaughter of cattle, exchange of gifts and welcoming the bride into her new family.
Often, the wedding celebrations don’t take place for a while after the lobola negotiations and payment has been settled (in part or full). The reality is that families need time to save up enough money for the big day. While paying lobola is essential, it is also important that the necessary traditional rituals and celebrations take place as soon as possible. From a legal perspective this is critical because should the couple get divorced or a spouse pass away, it could be challenging to prove that the couple legally married.
In 2018, Lerato Sengadi, widow of local hip-hop star HHP, found herself in a legal battle with her late husband’s family, who claimed that they didn’t consider her his widow since certain rituals weren’t completed. The family argued that the bride’s clan didn’t pay lobola and she wasn’t officially “handed over”. However, the judge ruled in favour of Sengadi, stating that the lobola was fixed, and the couple met all the requirements under the Customary Marriage Act.
What makes a Customary Marriage Valid?
Apart from the requirements mentioned that the marriage must be negotiated, celebrated and concluded in terms of customary law, there are other legalities. The couple must be consenting adults (over the age of 18) and not already in a civil marriage. Customary law does allow polygamy, but the groom will only be allowed to legally marry another bride if the High Court has given an order that regulates the matrimonial property system of the marriages.
What’s more, a customary marriage must be registered at the Department of Home Affairs within three (3) months of all the proceedings. A marriage certificate will serve as written proof of the couple’s marital status.
To register a customary marriage, the couple needs to take the following to Home Affairs:
- Copies of IDs and a lobola agreement letter, if available;
- One witness from the bride’s family;
- One witness from the groom’s family; or
- A representative of each of the families.
Keep in mind that failing to register a customary marriage does not invalidate the nuptials, but it is highly advisable to get one in case any disputes end up in a court of law.
2019 Amendments to the Recognition of Customary Marriages Act in South Africa
On 30 July 2019, Government passed a new bill to provide equality for women in monogamous or polygamous customary marriages in South Africa. Essentially, the amendment will give women who entered into a customary marriage before 1998 equal marital property rights.
“Spouses will now have joint and equal proprietary rights over marital property. This means that husbands will no longer have exclusive proprietary rights over marital property to the detriment of their wives. Children also benefit as they will be able to inherit from the mother as well,” said Minister Jackson Mthembu.
Other Legal Implications of a Customary Marriage:
A customary marriage is automatically considered to be in community of property. This means that all the assets and debts from before the marriage are shared in a joint estate between spouses. When couples are married in community of property, their separate estates are combined, and each spouse loses the right to dispose of assets as they wish or acquire debt without the others knowledge and consent.
Should they want to be married out of community of property, an ante-nuptial agreement must be signed BEFORE the ceremony; otherwise, they would have to approach the High Court.
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