My fiancé has paid my family lobola but we will only be getting married in two years

– What are the legal ramifications and what are my rights?

 

A blog article by Tania Abbotts

 

South Africa is a unique country due in part to the many different cultures, religions and customs within our beautiful rainbow nation. This is why we have so many different kinds of recognised lawful marriages: civil union, marriage, customary marriage etc. I have seen an increase in matters being taken to court regarding customary marriages mainly because it is uncertain at what point a customary marriage is deemed a lawful marriage and thus subject to the protection and obligations afforded to married couples.

 

Section 3(1) of the Recognition of Customary Marriages Act 120 of 1998 (the Act) sets out the requirements for a valid customary marriage.

‘For a customary marriage entered into after the commencement of this Act to be valid –

(a) the prospective spouses –

(i) must both be above the age of 18 years; and

(ii) must both consent to be married to each other under customary law; and

(b) the marriage must be negotiated and entered into or celebrated in accordance with customary law.’

 

Part (a) of the above section is easy enough to understand and apply, however, confusion arises in Part (b) of the section. What does it entail for: “the marriage to be negotiated and entered into or celebrated in accordance with customary law”?

 

Does this occur once Lobola is negotiated and paid? Or is it after the celebratory meal with the families, or is it when the bride is handed over by the elders of the family?

 

From recent case law, it is evident that the court will always look at all surrounding circumstances in a matter and not isolate one aspect over the other. They will consider the culture as a whole; what was done by the parties and their respective families at the time, what the parties have since done as well as what the intention was of the parties at the time the marriage is said to have occurred.

 

It is very possible that once lobola is paid, the parties could be deemed as married in community of property. Given the many subtleties and complexities we recommend seeing an attorney prior to any lobola negotiations commencing in order to assist should the parties wish to get married out of community of property.

 

For more information contact Tania Abbotts: TAbbotts@hammondpole.co.za