Phumi Simelane
21 September 2020

In recent years, a vast number of disputes (as well as matters of interpretation) pertaining to customary marriages have ended up in court and the inevitable accompanying social media spotlight. It has become quite clear that many individuals may not be familiar with the provisions of the Recognition of Customary Marriages Act 120 of 1998 (“the Act”) which aim to regulate customary and/or traditional marriages and/or the consequence of a marriage entered into on this basis.

The death of Mr Jabulani Tsambo aka HHP in 2018, a famous Hip-Hop musician, highlighted the importance of the general public’s knowledge on customary marriages and African unions. In this particular case, the court was tasked with determining whether a valid customary marriage came into existence between Mr Tsambo and Mrs. Lerato Sengadi.

Section 3 of the Act lays bare the requirements for the conclusion of customary marriages. To this extent, the Act prescribes the following (minimum) requirements:

  • the prospective spouses-
  • must both be older than I8 years of age (i.e. majors);
  • must both consent to be married to each other under customary law; and
  • the marriage must be negotiated and entered into or celebrated in accordance with customary law.

The first two requirements alluded to above need no further or in-depth explanation. It suffices to say that both you and your partner must be 18 years or older and further thereto, that both you and your partner must consent and/or agree to be married in terms of customary law aka “Isintu”.

The last requirement remains contentious and has been the topic of several court cases in the past. The consideration of some of these cases have to start with the noting of a Supreme Court of Appeal judgement in Tsambo v Sengadi (244/19) [2020] ZASCA 46 (30 April 2020). On the 28th of February 2016, Mr Tsambo’s family together with Mrs Sengadi met at the respondent’s family home to discuss the union between the two. On this day lobola negotiations were successfully concluded and a lobola agreement was reached. Their agreement stipulated that Mr Tsambo would pay a deposit of R30 000 and thereafter make a  further payment of R10 000. Payment of an additional amount of R5000 would follow at a later stage. Pursuant thereto, a payment of R35 000 was made by Mr Tsambo and a celebration ensued wherein the family of Mrs Sengadi welcomed and congratulated her and Mr Tsambo. The court found that a valid customary marriage which complied with all the requirements as set out in section 3 of the Act was concluded.

In considering the aforesaid, it is important that we take aim at certain myths surrounding the validity of customary marriages within our communities. Lobola does not need to be paid in full, gifts need not be exchanged, nor do cows need to be slaughtered for a valid customary marriage to be concluded. The non-registration of the marriage at Home Affairs does not invalidate the marriage either, which remains valid in spite of failing to attend to this formality.

The next important component that needs to be discussed is the proprietary consequences of customary marriages. Simply put, section 7(2) of the Act states that a valid customary marriage is automatically in community of property unless a valid antenuptial contract is entered into by the spouses. This means that there is only one (joint) estate of the spouses. Without a valid antenuptial contract, you and your partner have an equal share in all the assets and liabilities before and during the subsistence of the marriage. As such, should the marriage be dissolved either by death or divorce, a spouse is entitled to half the estate regardless of family members. It is important to enter into an Antenuptial Contract before a Notary Public should you wish to conclude a marital regime out of community of property. The most important considerations in relation to the difference in marital regimes concerns the proprietary rights of the spouses and the eventual division, at dissolution of the marriage.

A customary marriage carries the same weight and legal stance as a “civil marriage”.

Additionally, and contrary to various community myths, one cannot simply abandon the marriage and unilaterally elect to revert to “single” status without the due and proper dissolution of such marriage by a Court of law in accordance within section 8 (1) of the Act. This was illustrated in Monyepao v Ledwaba and Others (case no 1368/18) [2020] ZASCA 54 (27 May 2020), where a husband failed to dissolve his first customary marriage which was entered into in 2007 with Ms Ledwaba but simply decided to leave and marry Ms Monyepao in 2008. The court held that the subsequent marriage was null and void. As such the late husband’s R3.5 million estate devolved upon his first wife.

In closing, we are fast approaching the wedding season. If you are tying the knot and seek further legal clarity on the implications of customary marriages in relation to the dissolution of such marriage, estate planning, maintenance, your rights towards minor children and other ancillary family law advice, you would be well advised to obtain legal advice.