Moloi-adams: a legal conundrum

CAN A WHITE MAN ENTER INTO A VALID CUSTOMARY MARRIAGE IN MZANSI?

Social media has been abuzz since the breaking story in Sunday World about a possible legal battle looming between Pabi Moloi and Ruan Adams regarding the validity of a customary marriage allegedly entered into by them on April 30 2016.

According to the story, Ruan claims in letters between their attorneys that there was a breakdown in the marriage, demanding a division of assets and spousal maintenance. In response, Pabi is denying that there was ever a marriage between them.

The basis for the alleged customary marriage is that Ruan allegedly paid lobolo of R25000, gifts were handed over and a celebration was held after which Pabi was handed over. The article further claims he has photographic proof of the marriage.

According to the Recognition of Customary Marriages Act, which came into effect on November 15 2000, a customary marriage is defined as a marriage concluded in accordance with customary law. Having paid lobolo and done the celebration and handover, it would seem as if Ruan and Pabi did enter into a customary marriage, which is in community of property because they did not enter into an ante nuptial contract and Ruan would be entitled to 50% of the estate.

There might, however, be at least three challenges to Ruan’s claim.

The first is that the marriage is denied in which case he has to prove there was a marriage.

One of the things that points to an existing customary marriage is a lobolo letter wherein the agreement between the representatives of their families is recorded. In the article, there is no indication that such a letter exists.

However, while the letter is important, its absence is not fatal to Ruan’s allegations as he could have access to other evidence, which he claims to have.

He could even make use of the tweet made by Pabi on May 7 2016 that she got married the previous weekend.

If he has the evidence, it would then be up to Pabi to disprove it and up to the court to decide whether a customary marriage exists.

The second challenge to Ruan’s claim is posed by the act itself in its purpose and its definition of what customary law means. According to the act, customary law means “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples”.

The third challenge is with regards to the matter of domicile. It is a requirement that one must follow the laws of the country where he is domiciled. In South Africa, our history has been that a white person could only get married in terms of civil law.

Despite the fact that South Africa is a democracy where men and women are regarded as equals and marital power has been abolished, when a South African woman gets married she still follows the domicile of her husband, which then raises the question whether Ruan, as a white man, can enter into a valid customary marriage taking into account that he does not fall under the category of what can be referred to as an indigenous African, nor can it be said it has been part of his custom to practice customary law prior to November 15 2000.

The reality of the matter is that the question whether a customary marriage was entered into between Pabi and Ruan, is a matter that can only be determined by the appropriate court based on information before it and guided by the law.