YOUR FAM­ILY

Un­der­stand­ing cus­tom­ary mar­riages

Move! - - CONTENTS - By Hazel Phiri

IN South Africa, the def­i­ni­tion of a cus­tom­ary mar­riage is one that is ne­go­ti­ated, cel­e­brated or con­cluded ac­cord­ing to any of the sys­tems of in­dige­nous African cus­tom­ary law which ex­ist in South Africa. The Recog­ni­tion of Cus­tom­ary Mar­riages Act came into ef­fect on 15 Novem­ber 2000.

WHAT QUAL­I­FIES AS A CUS­TOM­ARY MAR­RIAGE?

A cus­tom­ary mar­riage must be en­tered into in terms of tra­di­tion. This means that there must be no white wed­ding, only a tra­di­tional cer­e­mony.

What is es­sen­tial is that lobola or ma­g­adi is ex­changed be­tween the two fam­i­lies. At times, there is con­fu­sion around pay­ing lobola whether that alone sig­ni­fies a cus­tom­ary mar­riage or not.

Ac­cord­ing to Move! le­gal ex­pert and fam­ily law spe­cial­ist, Nthabiseng Monareng, just pay­ing lobola is not enough. “Please note that the lobola pay­ment alone does not re­sult in a cus­tom­ary mar­riage. There must be lobola and the wife must be handed over as a wife. If the hus­band pays lobola and the par­ties move in to­gether, this will re­sult in co­hab­i­ta­tion,” she says.

This means all tra­di­tional pro­cesses must be fol­lowed; pay­ing lobola and the bride’s fam­ily of­fi­cially hand­ing her over to the groom’s fam­ily.

ISITHEMBU

Cus­tom­ary mar­riages al­low for a per­son to take more than one part­ner into the mar­riage. But it’s im­por­tant to note all these polyg­a­mous mar­riages need to be cus­tom­ary mar­riages.

The law is very clear that you’re not al­lowed to be in a cus­tom­ary mar­riage and a civil mar­riage at the same time with dif­fer­ent peo­ple. But as a cou­ple, you can have both a cus­tom­ary and civil mar­riage, but this means none of you can en­ter into other

LOBOLA PAY­MENT ALONE DOES NOT RE­SULT IN A CUS­TOM­ARY MAR­RIAGE

cus­tom­ary mar­riages while you are mar­ried to each other un­der civil law.

So, if your hus­band wants to take a sec­ond wife, the law states that he must draw an agree­ment or con­tract which will out­line what will hap­pen to the prop­erty, how it will be di­vided among the wives and then he must ap­ply to the court to ap­prove the writ­ten con­tract.

The court has to make sure all the prop­erty in­ter­ests of all the wives are pro­tected.

COM­MU­NITY OF PROP­ERTY

Ac­cord­ing to the De­part­ment of Jus­tice and Con­sti­tu­tional De­vel­op­ment, a cus­tom­ary mar­riage is au­to­mat­i­cally con­sid­ered to be in com­mu­nity of prop­erty.

This means that the hus­band and wife have an equal share in the as­sets, money and prop­erty. It also means that they share all the debts.

If the par­ties would like their mar­riage to be out of com­mu­nity of prop­erty, they will have to en­ter into an ante-nup­tial con­tract be­fore get­ting mar­ried. If you want to change after you are al­ready mar­ried, you will have to ap­ply to the High Court.

THE IM­POR­TANCE OF A MAR­RIAGE CER­TIFI­CATE

One of the big­gest and most com­mon chal­lenges with cus­tom­ary mar­riages is the mar­riage cer­tifi­cate. Civil mar­riages are au­to­mat­i­cally reg­is­tered with the De­part­ment of Home Af­fairs and the cou­ple is given a mar­riage cer­tifi­cate.

“The big­gest chal­lenge is non-reg­is­ter­ing cus­tom­ary mar­riages. Al­though non-reg­is­tra­tion does not in­val­i­date the mar­riage, in or­der to en­force your rights, file for di­vorce or be re­garded as a sur­viv­ing spouse, you need a mar­riage cer­tifi­cate. If you do not have a mar­riage cer­tifi­cate, your spouse can marry an­other per­son with­out your knowl­edge,” says Nthabiseng.

Hav­ing a mar­riage cer­tifi­cate is key to solv­ing many com­mon dis­putes in cus­tom­ary mar­riages. At times, when a part­ner dies, the spouse finds them­selves with the chal­lenge of prov­ing that they’re the cus­tom­ary wife.

A mar­riage cer­tifi­cate is le­gal proof that you are in­deed the de­serv­ing spouse.

REG­IS­TER­ING CUS­TOM­ARY MAR­RIAGES

The law cur­rently stip­u­lates that cus­tom­ary mar­riages must be reg­is­tered at Home Af­fairs within three months of tak­ing place. You can also reg­is­ter the mar­riage through a des­ig­nated tra­di­tional leader in ar­eas with no Home Af­fairs of­fice. You will need the fol­low­ing when reg­is­ter­ing a cus­tom­ary mar­riage: ■ Copies of your 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.

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