Chapter 6 - Introduction to customary family and betrothal law Flashcards
After you have studied this lecture, you should be able to • explain the scope and nature of customary family law • discuss the consequences of polygynous marriage for customary family law • distinguish between the traditional indigenous (customary) marriage, the customary union and the customary marriage • discuss the characteristics of the traditional indigenous marriage, the customary union and the customary marriage
What is family law?
Family law is that part of private law that regulates legal relationships within the family. The family comes to being through marriage. The law concerning marriage, or the law of marriage, is therefore an important part of family law.
What is customary family law?
Customary family law is slightly more complicated than indicated in the general outline of family law. Marriage in customary family law may be either monogamous or polygamous. This means a man could have either one wife only or have valid marriages with more than one woman at the same time.
What do patrimonial consequences refer to?
They refer to the legal consequences of the marriage for the married couple’s property.
How does a polygynous marriage influence customary family law?
- Potentially, there are two or more families, and this family unit is known as the agnatic group.
- The legal relations within the family also apply to each family within the household.
- The various families are bound to one another in particular relationships of rank by means of the husband, who is the common spouse of each.
- Multiple families require a complicated system of property relations. One of the results of this is that a distinction is made between family or house property and general property.
Name the 3 distinct types of marriages under customary law.
- Traditional Customary Marriages
- Customary Unions entered into in terms of the Recognition of Customary Marriages Act 120 of 1998.
- Customary marriages entered into in terms of the Recognition of Customary Marriages Act 120 of 1998.
What is the distinction between these 3 marriages?
The most important point is that all three marriage types are recognised by law and applicable. They are simply distinguished by time in the history of the recognition of customary law.
When did the Recognition of Customary Marriages Act 120 of 1998 come into operation and what were the effects?
The Recognition of Customary Marriages Act 120 of 1998 came into operation on 15 November 2000. The effects of this Act is that it grants recognition to customary marriages, including polygynous marriages, for all intents and purposes of the law. The Act places customary marriages in the same footing as the civil marriages.
What is betrothal in terms of customary law?
In original indigenous law, betrothal was an agreement between two family groups with regard to a future marriage between a male member of one group and a female member of the other group.
How do the man and his family group normally initiate marriage negotiations?
A man who wishes to marry usually asks the father of the intended bride, often through messengers, to allow him to become a suitor. This would be the stage referred to as the “knocking on the door ceremony.”
Does the betrothal agreement create an enforceable right or obligation to marry?
No, the betrothal agreement does not create an enforceable right or obligation to marry and it can be repudiated or terminated at any time.
The betrothal gives rise to which rights and duties for the man and the woman?
The woman should not pay too much attention to other men during the betrothal period. Because of the polygynous nature of the marriage, the man may pay attention to other women during this period, but should nevertheless, make sure he does not neglect his betrothal.
How is the betrothal terminated?
The betrothal can be terminated in one of the three ways:
- By the death of the man or the woman
- By mutual agreement
- By unilateral termination
What are the consequences of betrothal termination?
The legal consequences of the termination of a betrothal are particularly related to the question f the disposal of the goods that have already been delivered with the proposed marriage in mind. Among the Sotho, the principal is that betrothal gifts are not returned. However, the position regarding marriage goods varies among the indigenous African peoples, and the following circumstances will be considered:
1. Upon death
2. By agreement
3. By unilateral termination
