Dissolving customary marriages a tricky business

MARRIAGES performed under the Recognition of Customary Marriages Act 120 of 1998 are recognised as legal and may only be dissolved by a court through a divorce.

This is according to leading divorce attorney Selwyn Shapiro, who said that before the act being promulgated, customary marriages were not recognised as legal in the country.

But since the act came into force and these marriages were now recognised in law, it followed that the union had to be dissolved through divorce.

But Shapiro said that to be recognised as a valid customary marriage, the parties had to be over 18, and both had to consent to the marriage.

Lobolo had to be negotiated and paid, and the marriage had to be celebrated in terms of the customs of the couple.

This last aspect, Shapiro said, may vary from tribe to tribe.

He said it was not always a clear-cut issue, as illustrated in a case in which he is appearing, and in which the “husband” is contesting that the marriage was indeed concluded. In this case, the “wife” claimed that she and her “husband” were legally married under customary law.

She is asking for a divorce order as well as maintenance from her “cheating” husband.

He, on the other hand, claimed that there was no valid customary marriage as it was not celebrated in accordance with customary law.

Ritual

He said the lobolo formalities were only partially concluded and there was no handing over of the bride from her family to his family.

He also complained that there was no ritual slaughtering of an animal to symbolically establish a blood bond between the two families through marriage.

Shapiro said these issues could be complicated, and in this case, they would call on experts on indigenous law to shed more light on what customs had to be followed and what was required for it to be recognised as a valid marriage in terms of the Customary Marriages Act.

The Supreme Court of Appeal, earlier in a similar case, regarding the issue of when a customary marriage became valid, commented that African law and its customs were not static, but dynamic.

Then Appeal Court Judge Lebotsang Bosielo in that judgment commented that the Customary Marriages Act required that the marriage had to be negotiated and entered into in accordance with customary law.

“Customary law is as diverse as the number of different ethnic groups we have in this beautiful country.

“Although Africans in general share the majority of customs, rituals and cultures, there are some subtle differences which, for example, pertain exclusively to the Ngunis, Basotho, Bapedi, VhaVenda and the Vatsonga,” Judge Bosielo said.

As there were so many ethnic groups and customs, it was often problematic for a court to determine which was applicable to a particular case.