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RPR 210 > Chapter 7: Marriage > Flashcards

Chapter 7: Marriage Flashcards

1
Q

Five features that distinguished customary marriages from those approved by the law

A
  1. Polygyny was not only tolerated but even approved
  2. Validity of union dependant on payment of lobolo
  3. Relationship was between two families rather than two individuals
  4. The union was achieved gradually over time
  5. Marriage was a private affair
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2
Q

Overview of recognition of customary marriages

A
  • Customary marriage was a private matter
  • Validity of union did not depend on the intervention of any third party, apart from the families involved in the union
  • Women were regarded as perpetual minors
  • Husbands exercised marital power
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3
Q

Sihele case

A
  • Union founded only upon Native customs
    and usages within the Colony is not a marriage.
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4
Q

Seesdat’s Executor case

A

Marriage defined as voluntary union for life of one man and one woman set out in the case of Hyde v Hyde.

Customary marriages not recognised because they offended against public policy.

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5
Q

The effects of non-recognition of customary marriages

A
  • ‘Spouses’ not considered to be husband and wife
  • No duty of support
  • Children considered to be illegitimate
  • Marriage by civil rites extinguished the customary marriage
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6
Q

Forms of Limited Recognition

A
  • Statutory enactments provided limited recognition
  • Sought to alleviate the plight of spouses
  • Examples included inter alia:
    The Income Tax Act
    The Maintenance Act
    Black Laws Amendment Act
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7
Q

Polygamy

A

A practice according to which a married person has more than one wife or husband at the same time.

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8
Q

Polygyny

A

A version of polygamy where the husband has more than one wife; used interchangeably with polygamy in South Africa

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9
Q

Polyandry

A

A version of polygamy where the wife has more than one husband

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10
Q

The Preamble of the RCMA (Recognition of Customary Marriages Act)

A
  • Make provision for the recognition of customary marriages
  • Specify the requirements for validity
  • Regulate registration, proprietary consequences, and dissolution
  • Provide for the equal status and capacity of spouses in these marriages.
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11
Q

What the RCMA sought to do

A

i. Attack patriarchy
ii. Eradicate the inequality between women and men
iii. Improve the position of children

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12
Q

S1 of the RCMA

A

Defines customary marriage as a marriage concluded in accordance with customary law.
Defines customary law as ‘the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples’

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13
Q

What does the RCMA grant in terms of equality?

A

● RCMA grants equal recognition to customary marriages concluded before and after the commencement of the RCMA
● Whether monogamous or polygamous

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14
Q

What changes did the RCMA made?

A

Changes include inter alia:
i. Equal status of the spouses
ii.Reconfiguring the matrimonial property system
iii.Court-granted divorces
* RCMA also affirms the best interests of the child

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15
Q

Mayelane v Ngwenyama

A

Section 7(6) of the RCMA reads as: A husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of this Act must make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriages.

CC: first wife needs to give consent for the second marriage

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16
Q

Changes that the RCMA imposed

A
  • Some of these changes include equal status of spouses;
  • Reconfiguring the matrimonial property system; and
  • Introducing court-granted divorces.
17
Q

Legal Requirements for a valid customary marriage concluded before 15 November 2000

A
  • The RCMA recognises as valid, all marriages concluded before 15 Nov 2000, whether monogamous or polygamous.
  • Customary law is applicable to these marriages
  • Problems of ascertainment
  • Alleviated by the Codes of Zulu Law
  • The Codes regulated marriages concluded in KwaZulu Natal
18
Q

Validity Requirements under the Codes of Zulu Law

A

i. Consent of the father or the guardian of the prospective wife
ii. Consent of the father of the guardian of the prospective husband
iii. Declaration in public by the prospective wife that she voluntarily submits to the marriage

19
Q

Legal requirements for customary marriages in other parts of South Africa concluded before the commencement of the RCMA

A
  • Consent of the father or guardian of the prospective husband
  • Consent of the father or guardian of the prospective wife
  • Consent of the prospective husband
  • Consent of the prospective wife
  • Handing over of the bride
  • Agreement that lobolo will be delivered
  • No existing civil marriage
20
Q

Problems with essentials or requirements of customary marriages concluded before the RCMA

A

● Consent of the father/guardian of prospective husband subject to a
number of factors
● Consent of wife and husband seems open-shut
● Some of other ‘essentials’ listed are not customary law
● Most essentials difficult to work with at certain times

21
Q

Only three essentials or requirements are free from contention:

A

I. Consent of prospective bride
II. Agreement on lobolo
III. Handing over of the bride

22
Q

Validity requirements for marriages concluded after 15 Nov 2000

A

Section 3(1) sets ou the requirements

Section 3(1)(a)
* Must be above the ages 18 years
* Must both consent to be married under customary law

Section 3(1)(b)
* Negotiated and entered into or celebrated in accordance with customary law

23
Q

Maluleke v Minister of Home Affairs

A

● Court considered meaning of words of s 3(1)(b)
● Negotiated refers to negotiations in respect of the marriage
● Dispute over whether marriage was ‘entered into or celebrated’
● Court accepted definition of Oxford Dictionary
● Celebrated refers to festivities or performance of rite or ceremony
● Negotiations form part of fundamental stage in conclusion of marriage
● Parties must agree they are married, explicitly or implicitly

24
Q

The issues relating to Section 3(1)(a)

A

● In line with Children’s Act and country’s international law obligations
● Blow against child marriages
● Empowers prospective husband and wife
● Distorts the practice of Ukuthwala

25
Q

Ukhuthwala

A

● “Consensual elopement” by two lovers of marriagable age
● Completed through “mock kidnapping/abduction”
● Done for the following reasons:
● Pressure girl’s family into entering lobolo negotiations with preferred suitor
● Pregnancy

26
Q

Concerns with distortions of Ukuthwala

A

● Disregards customary expectations of Ukuthwala through:
❖ Requirement of consent
❖ Prohibition of intimacy once she gets to lover’s house
❖ Strict protocol of girl having to inform her family about her whereabouts

27
Q

Jezile v State

A

● Man sentenced to 22 years on count of common assault, assault to cause bodily harm, three counts of rape, and one count of human trafficking
● Charges resulted from abduction of 14-year-old girl under “Ukuthwala”
● Court rejected defence

28
Q

Matlala v Dhlamini

A

the RCMA mandates using the parties’ specific customary law for marriage validity, prohibiting courts from applying precedents from different ethnic groups.

29
Q

Two essential requirements for Customary
Marriages

A
  • Lobola
  • Integration of the bride into her husband’s family
30
Q

Lobolo

A
  • Crucial element of customary law
  • Includes the negotiation of token of appreciation to be given to bride’s family
  • Does not constitute sale and purchase
  • Beginning of the integration or merging of the two families
31
Q

Issues surrounding Lobola

A
  • Does lobola alone constitute a marriage?
  • Misconception regarding payment of lobola
  • Lobola on its own does not constitute lobola
32
Q

Mmutle v Thinda

A

agreement between the families that leads to the payment but not that the payment needs to be in full.

33
Q

Raisiba v Minister of Home Affairs

A
  • Lobola not paid in full
  • Families agreed marriage process would remain incomplete until lobola was fully paid
  • Court took this into consideration
  • Valid marriage was not concluded
34
Q

Lobolo creating a marriage

A
  • The payment of Lobolo is a part of the process.
  • Payment alone can never create a valid marriage.
35
Q

Mbungela case

A
  • Lobolo can be waived as it is not an essential requirement
36
Q

S3(2) of the RCMA

A
  • prohibits spouse in customary marriage from contracting a civil marriage except with each other
  • Eliminates discarded spouses issue
  • However, parties already in customary marriage may conclude a civil marriage
37
Q

Registration of customary marriage

A
  • RCMA places duty on spouses to register the marriage
  • Failure to register does not affect its validity
  • Marriages concluded before 15 November 2000 had to be registered within a year of that date Or within any prescribed period by the Minister by notice in Gazette
  • Marriages concluded after 15 November 2000 had to be registered within three months of the wedding or within prescribed period by minister
38
Q

Section 4(5)(a) of the RCMA

A

parties may apply for registration
* Registration Officer may issue certificate if satisfied that a valid customary marriage exists

RPR 210 (8 decks)

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