A Pretoria High Court judge has ruled that lobola does not have to be paid in full before a customary marriage is deemed valid. The court declared that the marriage between an Mpumalanga man and woman, who has since died, is valid despite the fact that the husband had not payed the full lobola. The woman’s daughter Thubile Mkhoza is disputing that her mother and stepfather were married and that he is entitled to a share of her mother’s estate reports The Star
According a report released by Statistics SA in February, a total of 3 062 customary marriages took place in 2013. South African law makes provision for people to choose to enter into either customary marriages, civil unions or civil marriages.
If you would like to forgo a civil marriage or union and go the traditional route there are a number of things to bear in mind.
Yossi Shishler of Charles Mendelow and Associates says under customary law the marriage is automatically undertaken in community of property. However, there are certain instances where this will not apply.
“[This will change if] the parties enter into an antenuptial contract, prior to the marriage, indicating that the marriage will be out of community of property, with or without the accrual system,” he explains.
Shishler adds that if one spouses is already married to another spouse in terms of customary law, the subsequent marriage is automatically out of community of property.
To avoid long drawn out court battles over estates and wills, people entering into customary law marriages need to know what they’re entitled to should their spouse die. Shishler says this depends on whether or not the deceased left a will. If there is a will the spouse will inherit according to the will.
“If the deceased did not leave a valid will, the estate must devolve in accordance with the laws of Intestate Succession, as regulated by the Act, which includes inheriting a child’s portion of the intestate estate or as much of the intestate estate as does not exceed in value an amount fixed from time to time in the Government Gazette, whichever is the greater, he explains.
It is important to note that entering into a customary marriage will prevent a person from entering a further marriage under the Marriages Act, however, it is possible to enter into further customary marriages such as polygamous unions. There are stipulations in the law as to how these must be conducted.
“In a polygamous marriage, the husband must apply to the High Court for permission to enter into such further marriage and provide the court with the written contract stating how the property and the marriages will be regulated,” says Shishler.
According to the law, a husband who decides to take more than one wife under customary law needs to ensure that all wives are taken care off.
The Recognition of Customary Marriages Act (RCMA) which became law on 15 November 2000 states: “The husband must enter into a written agreement/contract which will state what should happen to the property, and then the husband must apply to the court to approve the written contract. The court has to make sure that all the property interests of all wives are protected.”
Additional source: Statistics South Africa, The Star