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
How to get rid of stigma and thrive while living with HIV

How to get rid of stigma and thrive while living with HIV

Eusebius McKaiser chats to brothers Thula and Ntokozo Mkhize on how people can accept and cope with the virus.

10 anger types that escalate to gender-based violence in relationships

10 anger types that escalate to gender-based violence in relationships

Clinical sexologist Dr Eve says words stick and do not heal as fast as wounds.

'Since Ramaphosa became president Motsepe has become bizarre,' says caller

'Since Ramaphosa became president Motsepe has become bizarre,' says caller

Callers react to businessman Patrice Motsepe telling Donald Trump that Africa loves the US president.

Looking at art as one of the languages in which to talk about mental illness

Looking at art as one of the languages in which to talk about mental illness

Eusebius McKaiser and pundits reflect on how people can manage their mental health challenges by creating artworks.

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
Fitness was a career that chose me - meet 'Queen Fitnass'

Fitness was a career that chose me - meet 'Queen Fitnass'

Mapule Ndhlovu opens up about her life journey and how exercise changed not only her body, but her mindset for the better.

EFF issues one-line apology to journos after court order

EFF issues one-line apology to journos after court order

Anton Harber and Thandeka Gqubule won their defamation case over Mbuyiseni Ndlozi's party statement implying links to Stratcom.

Ugandan climate activist accuses media of racism after Davos photo crop

Ugandan climate activist accuses media of racism after Davos photo crop

WEF youth climate delegate Vanessa Nakate was cropped out of a group pic with her white peers, also featuring Greta Thunberg.

Letting go of your child who's headed for university and independence

Letting go of your child who's headed for university and independence

Nikki Bush has valuable tips on preparing not only your school-leaver but yourself for the journey into adulthood ahead.

Right to Sight pleads for more donations to conduct cataract surgeries

Right to Sight pleads for more donations to conduct cataract surgeries

Right to Sight trustee Dr Matt Young says they get donations at the most time but now need big sponsors.

Remains of Cato Manor 9 returned on anniversary of their hanging

Remains of Cato Manor 9 returned on anniversary of their hanging

The Cato Manor 9 were hanged in 1961 by the apartheid after taking part in an uprising on 24 January 1960.

Zakes Bantwini opens up about his latest single 'Amanga'

Zakes Bantwini opens up about his latest single 'Amanga'

The musician says he never writes songs about his personal life but this latest single is too personal for him.

Unisa extends registration deadline in the wake of union protests

Unisa extends registration deadline in the wake of union protests

Unisa acting director of communications Lusani Netshitomboni says they encourage students to register online.

Jacques Nienaber confirmed as new Springboks head coach

Jacques Nienaber confirmed as new Springboks head coach

Mzwandile Stick has been reappointed as an assistant coach while in an innovative inclusion, Felix Jones will continue but in a new role as a European-based coaching consultant.

Statistics show decline in mining fatalities

Statistics show decline in mining fatalities

Department of Minerals and Energy chief inspector of mine David Msiza says more needs to be done.