Register your customary marriage or lose the right to inherit estate

By Athenkosi Sawutana

December is that time of the year when we will see at least one suitor sending his uncles to negotiate the price of his future wife. Lobola, as the bride price is known, has always been an important element of the African marriage. 

Without it the elders and the community would never recognise the union.  However, the introduction of the Western legal system has brought a profusion of changes in the definition of marriage.

Lately there has been a lot of contestation over what constitutes customary marriage and what doesn’t.  The topic sparked a lot of interest after the death of the well-known hip-hop artist, HHP, whose family contested the legality of his marriage to his wife, Lerato Sengadi.

So before you get hitched make sure that you know what you are getting yourself into.

What factors determine the validity of the marriage?

All customary marriages entered into before 15 November 2000 are valid.

According to the LegalWise Legal Research Department, if entered into after that date, it must comply with the following requirements:

  • The marriage must be negotiated and entered into or celebrated according to customary law. This means that the marriage must be in line with the traditions and customs of the parties involved.
  • The bride and groom must be 18 years old or older and must both agree to marry each other in terms of customary law. A person who cannot give consent, such as a mentally insane person, will not be able to get married.
  • If either the bride or groom is a minor, then the consent of both parents is required. If the minor has no parents, then the consent of the legal guardian is required.
  • The marriage must be lawful and the bride and groom must also be competent to marry each other. This means that they must not be blood relatives. For example, a brother and sister are not allowed to marry each other.

So what role does lobola play in customary marriage?

Lobola is not a direct requirement for customary marriage, according to LegalWise.

“If the husband cannot pay the requested lobola to the bride’s family, it is possible for the families to negotiate that the lobola is paid in instalments,” says the department.

The different cultures and traditions will be taken into account, together with other elements such as the handing over of the bride. 

Ashley Cooper, a candidate attorney from Abrahams and Gross Attorneys, says if lobola is paid, it goes a step further to proving that the marriage was negotiated in accordance with custom. She says 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,” says Cooper.

This brought some confusion as the court recently ruled in Sengadi’s favour on the grounds that the act did not list the handing over of the bride as a requirement.

“The requirements that the marriage must be negotiated and entered into or celebrated in accordance with customary law is vague as it does not specify the actual requirements for a valid customary marriage,” says Cooper.

Cooper says a factual determination must still be made in order to reach a finding as to whether this requirement has been complied with.

Does the marriage have to be registered to be valid?

“The Customary Marriages Act requires that the couple who entered a customary marriage must ensure that the marriage is registered at the Department of Home Affairs,” says LegalWise.

Section 4(9) of the Customary Marriage Act does, however, state that a customary marriage is not invalid if the customary marriage is not registered.

The act is silent on whether there are any consequences when the spouses fail to register the marriage. However, LegalWise advises you to be cautious.

“If a customary marriage has not been registered it can cause problems for the surviving spouse, for example, if the marriage is disputed by the relatives of the deceased,” says LegalWise.

If the surviving spouse cannot provide proof of marriage to the deceased, it might affect the right of the surviving spouse to inherit from the deceased’s estate.

How do you dissolve this marriage?

The Customary Marriages Act provides that all customary marriages must be dissolved by an order of court. The order may be granted by a High Court or any Regional Court. The Customary Marriages Act further provides that a customary marriage may only be dissolved on the grounds of irretrievable breakdown (the relationship cannot be repaired).

Both the husband and the wife may institute proceedings to have the marriage dissolved.

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