What is a customary marriage? And when is it valid? An expert explains

Customary law expert and lecturer Zama Mopai says when it comes to customary marriage, each case needs to be dealt with on its own merits.

Mopai says there are two types of customary law; living customary law and official customary law.

Official customary law is reflected in legislation while living customary law is reflected in every day practices and differs in various communities.

Last week, the court ruled that Lerato Sengadi was married to late rapper HHP in terms of customary law, despite his family arguing that certain marriage rituals weren't completed.

Judge Ratha Mokgoatlheng ruled that legislation regarding customary marriages do not require the bride to be "handed over".

The judges explained that the law recognises the following requirements for a customary marriage:

  • lobola must be fixed
  • the parties must consent to customary marriage in accordance to customary law
  • parties must be older than 18 years or have parental consent
  • marriage must be negotiated an entered into or celebrated according to customary law

Mopai advises that customary marriage must be registered to serve as proof and in order to reflect the marital status of the couple.

However, failure to register the marriage doesn't mean the marriage isn't valid.

According to the Recognition of Customary Marriages Act (RCMA), the only way out of a customary marriage is through a decree of divorce from the High Court, she explains.

Mopai argues that a partial contribution towards the agreed upon lobola amount is sufficient for customary marriage to be valid.

She says the agreement or intention to give lobola alone is not enough.

I do understand where the judge comes from. I agree with the decision that he made based on the circumstances of the case.

Zama Mopai, Customary Law Expert and Lecturer at the University of Venda

The court had to make a decision based on the evidence that was brought before it. Evidence was brought in forms of pictures and documents.

Zama Mopai, Customary Law Expert and Lecturer at the University of Venda

Evidence was brought in forms of pictures

Zama Mopai, Customary Law Expert and Lecturer at the University of Venda

On one side, the judge said the transfer of the bride is not a necessity, on the other side he took the evidence of the celebration.

Zama Mopai, Customary Law Expert and Lecturer at the University of Venda

In one case, the court was very clear that the celebration does not have to be a big ceremony.

Zama Mopai, Customary Law Expert and Lecturer at the University of Venda

For a customary marriage to be valid, you must first enter into the marriage according to custom and the once that is done then you can proceed to register it.

Zama Mopai, Customary Law Expert and Lecturer at the University of Venda

The registration itself does not make the marriage valid. What makes the marriage valid is customary law.

Zama Mopai, Customary Law Expert and Lecturer at the University of Venda

Living customary law is flexible in its nature. It varies from one community to another. It's not uniform.

Zama Mopai, Customary Law Expert and Lecturer at the University of Venda

The agreement alone for me would not be lobola, there must at least be a partial giving.

Zama Mopai, Customary Law Expert and Lecturer at the University of Venda

Listen to the intriguing discussion on The Eusebius McKaiser Show:


This article first appeared on CapeTalk : What is a customary marriage? And when is it valid? An expert explains


Recommended

by NEWSROOM AI
Read More
Watching 'Peppa Pig' improved my son's English, SA dad says

Watching 'Peppa Pig' improved my son's English, SA dad says

The Pan South African Language Board warns parents to take note of their role in defining language and accent in a child's life.

Black gay men can be misogynists, and here's what a few have to say about it

Black gay men can be misogynists, and here's what a few have to say about it

Presenter Eusebius McKaiser hosted a panel discussion with black gay men exploring entrenched patriarchy and the dynamics at play.

 Caller tells Eusebius how he froze seeing a woman being hit outside a club

Caller tells Eusebius how he froze seeing a woman being hit outside a club

Eusebius McKaiser and a caller discuss scourge of domestic violence in SA and what should happen when one witnesses abuse.

Our strength rests in our vulnerability - expert advice on letting go

Our strength rests in our vulnerability - expert advice on letting go

Clinical psychologist Khosi Jiyane says people who refuse to be vulnerable rob themselves of the richness and nuances of life.

HHP's family say Lerato Sengadi can attend the funeral but not as his wife

HHP's family say Lerato Sengadi can attend the funeral but not as his wife

Eyewitness News reporter Kgomotso Modise gives updates from the Johannesburg High Court in the HHP burial case.

Would you give up all your assets to be a housewife?

Would you give up all your assets to be a housewife?

Azania Mosaka speaks to a lawyer specialising in family law about understanding customary law and divorce proceedings.

Popular articles
Caster Semenya calls out IAAF for publicising expert witness list

Caster Semenya calls out IAAF for publicising expert witness list

Olympic champ Caster Semenya is challenging proposed IAAF rules that may force her to lower her testosterone levels.

'Parliament should have proper inquiry into Mkhwebane's fitness to hold office'

'Parliament should have proper inquiry into Mkhwebane's fitness to hold office'

DA's John Steenhuisen says Parliament should investigate the public protector after the findings against her.

I had nothing to do with VBS - Florence Radzilani

I had nothing to do with VBS - Florence Radzilani

Vhembe District former mayor Florence Radzilani says the Provincial Forensic Investigation exonerated her from the VBS scandal.

Pule Mabe was never alone in hotel room with assistant - ANC NEC's Sdumo Dlamini

Pule Mabe was never alone in hotel room with assistant - ANC NEC's Sdumo Dlamini

ANC's Sdumo Dlamini says party spokesperson Pule Mabe free to return to work after he being cleared of sexual harassment charges.

Black gay men can be misogynists, and here's what a few have to say about it

Black gay men can be misogynists, and here's what a few have to say about it

Presenter Eusebius McKaiser hosted a panel discussion with black gay men exploring entrenched patriarchy and the dynamics at play.

Why rooibos tea price remains high despite improved rains

Why rooibos tea price remains high despite improved rains

MD at Rooibos Ltd, Martin Bergh explains the current high price of Rooibos tea.

[WATCH] Owner catches car thief off guard and thwarts vehicle theft in Springs

[WATCH] Owner catches car thief off guard and thwarts vehicle theft in Springs

The vehicle's owner came out of the store just in time to scare away the man attempting to steal his bakkie.

Johannesburg’s drive to create a smart city is rolling out

Johannesburg’s drive to create a smart city is rolling out

Vumatel is deploying 15 000 CCTV security cameras over the next five years to make Joburg's streets safer.