In South Africa, traditional weddings create an opportunity for the families of the bride and groom to showcase their different cultural practices with the aim of bringing both families together as one. In certain instances, it is possible that not all cultural practices are performed during one ceremony and these practices end up being overlooked.
So, what happens when lobola has been presented but other cultural rituals have not been performed? Would this be enough to create a marriage, or would other rituals need to be performed for the union of the bride and groom to be recognised as a valid marriage?
What is lobola?
In terms of the Recognition of Customary Marriages Act 120 of 1998 (the law which regulates customary marriages), lobola is “property in cash or in kind, which a prospective husband or head of his family gives to the head of the prospective wife’s family in consideration of customary marriage”. This practice is performed differently in various cultures, but generally the groom’s uncles will present themselves at the bride’s home with the hope to negotiate the lobola. Once welcomed by the bride’s family, negotiations will commence and the agreed amount of money or animals (usually cows) will be presented by the groom’s family with the aim of uniting the bride and groom.
Requirements of a valid customary marriage.
Section 3(1) of the Recognition of Customary Marriages Act provides the requirements of a valid customary marriage as follows: (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.
The last requirement speaks about the cultural practices that must be performed. Recently, the court has dealt with instances where not all practices were performed during the celebration – e.g., handing over of the bride. This is an important part of the celebration because the bride is officially welcomed into the groom’s family and this is seen when the groom’s family gives the bride a new name; allowing the bride to wear the groom’s traditional attire; and handing over certain gifts. If this part of the celebration is not performed, some may say the celebration is not complete – and therefore, there is no marriage. However, the court has stated that the non-performance of only one part of the ceremony should not lead to the conclusion that there is no valid marriage. Other acts and required rituals performed such as lobola, the wearing of traditional attires or the slaughtering of animals should also be considered. Additionally, if the couple continues to live together after the ceremony then the court will deem the marriage valid.
It is clear that the giving and receiving of lobola may constitute a valid customary marriage, even though other rituals have not yet been performed.
How to ensure your customary marriage is valid
Although lobola may be enough to have a marriage considered valid, couples are often advised to register their marriages. If a couple intends to get married out of community of property, it would be helpful to sign an antenuptial contract (often called a ‘prenup’) before the lobola negotiations, to avoid being presumed married in community of property. Those who wish to be married in community of property do not have to enter into an antenuptial contract before their marriage but are also advised to register their marriage with the Department of Home Affairs. For further information about marital property systems and customary marriages. After the ceremony, couples are given three months to register their marriages. Registration is beneficial because it makes it easy to prove the existence of the marriage if you are required to do so.
References
1. Recognition of Customary Marriages Act 120 of 1998.
2. Tsambo v Sengadi (SCA) (unreported case no 244/19, 30-4-2020); Mbungela and Another v Mkabi and Others 2020 (1) SA 41 (SCA).
4. https://www.justice.gov.za/index.html
