Chapter 7 - The legal requirements for customary marriages

Question 1

List the legal requirements for a traditional customary marriage.

Answer 1

1. The man and woman must not be related to one another within the prohibited degrees of kinship.
2. There must be consensus between the two family groups regarding the two individuals to be united in marriage, and the marriage goods must be delivered.
3. The bride must be transferred by her family group to the man’s family group.
4. As far as the woman is concerned, there is a further requirement, namely that she is not already involved in a marital union. Because of the polygynous nature of indigenous marriages, this requirement does not apply to the man.

Question 2

List the most important requirements for the lobolo contract.

Answer 2

1. Consent of the father or guardian of the bride to be.
2. Consent of the bride
3. Transfer of the bride effects the marriage
4. Transfer of lobolo

Question 3

In terms of bride transfer, should that be done physically?

Answer 3

The transfer of the bride need not take place physically, but there must be a formality of some kind indicating this transfer.

Question 4

List the legal requirements for a customary union inside KZN.

Answer 4

1. Consent of the bride’s father or guardian, if she is still a minor, whose consent must not be unreasonably withheld.
2. The consent of the bridegroom’s father or family head, if the bridegroom is still a minor.
3. A public declaration by the bride to the official witness that the union takes place with her consent.

Question 5

List the legal requirements for a customary union outside KZN.

Answer 5

1. consent of the bride’s guardian
2. consent of the bride
3. consent of the bridegroom
4. payment of marriage goods
5. transfer of the bride
6. consent of the bridegroom’s father in certain circumstances, namely if the bridegroom is a minor.
7. consent of the bride’s father
8. consent of the bridegroom
9. consent of the bride
10. the handing-over of the girl to the man or his family group
11. An agreement that lobolo will be delivered
12. the non-existence of a common-law (civil) marriage

Question 6

List the absolute legal requirements for a valid customary marriage entered into after 15 November 2000.

Answer 6

1. The prospective spouses must both be over the age of 18.
2. The prospective spouses must both consent to be married to each other under customary law.
3. The marriage must be negotiated, entered into, or celebrated in accordance with customary law.

Question 7

What are the provisions for minors as per Act 120 of 1998 to enter into a customary marriage while they are minors?

Answer 7

1. If either of the prospective spouses is a minor, both his or her parents or, if he or she has no parents, his or her legal guardian, must consent to the marriage.
2. If the consent of the parent or legal guardian cannot be obtained, section 25 of the Marriage Act, 1961, provides that the commissioner of child welfare may grant consent to the marriage of a minor if he or she is satisfied, after proper inquiry, that the minor has neither parent nor guardian, nor is, for any good reason, in a position to obtain consent of his or her parents or guardian. The commissioner is not entitled to give consent if either of the parents or guardians refuses to give consent.

Question 8

When must a customary marriage be registered?

Answer 8

The Recognition of Customary Marriages Act 120 of 1998 now makes provision for the registration of all customary marriages entered into in South Africa. Failure to register a customary marriage does not, however, affect the validity of the marriage. Registration, therefore, merely provides proof that a customary marriage does indeed exist.

Question 9

What are the duties of the spouses in a customary marriage regarding registration?

Answer 9

The have a duty to ensure that their marriage is registered. Either spouse may apply to the registering officer in the prescribed form for the registration of his or her customary marriage.

Question 10

How is the customary marriage entered into before the commencement of the Act registered?

Answer 10

A customary marriage entered to before the commencement of the Act, and which is not registered in terms of any law, must be registered within a period of 12 months after the commencement or within such a longer time as the Minister may from time to time prescribe by notice in the Gazette.

Question 11

How is the customary marriage entered into after the commencement of the Act registered?

Answer 11

It must be registered within a period of three months after the conclusion of the marriage or within such a longer period as the Minister may from time to time prescribe by notice in the Gazette.

Question 12

What happens if, for any reason, a customary marriage is not registered?

Answer 12

Any person who satisfies a registering officer that he or she has a sufficient interest in the matter may apply to the registering officer in the prescribed manner to enquire into existence of the marriage.

Question 13

In 1960, Thabo (a 17-year-old boy) and Zandi (a 16-year-old girl) and their respective fathers concluded an agreement in terms of which Thabo had to deliver six heads of cattle and R5000 as lobolo to Zandi’s family. Thabo delivered the lobolo agreed upon and, shortly afterwards, Zandi was allowed to reside with Thabo and his family. In 1962, twin daughters were born to them, namely Nonhlanhla and Bongiwe. However, Zandi experienced some complications during childbirth and died shortly afterwards. A few years after her death, Thabo discovered that Zandi was actually a member of the clan of his mother’s people.

Question 14

1. Did a legally valid marriage come into beith between Thabo and Zandi?

Answer 14

Thabo and Zandi entered into their marriage in 1960, which was before the Recognition of Customary Marriage Act 120 of 1998 came into operation. Therefore, in KwaZulu-Natal, section 38(1) of the Codes of Zulu Law would apply. This section requires the following for the conclusion of a customary union:

1. consent of the bride’s father or guardian if she is still a minor, which consent may not be unreasonably withheld.
2. consent of the bridegroom’s father or family head, if the bridegroom is still a minor (Both these requirements have been met)
3. A public declaration by the bride to the official witness that the union is taking place with her consent. (This requirement has not been met.)

Therefore, this customary marriage inside KZN is not valid, given also the prohibition of marrying within the prohibited degrees of kinship.

Outside of KZN, the requirements for a valid customary union are:

1. consent of the bride’s guardian
2. consent of the bride
3. consent of the groom
4. payment or delivery of the marriage goods
5. transfer of the bride

Therefore, the customary marriage is valid outside KZN.

Question 15

Would a legally valid marriage have come into being if they concluded their marriage on 10 December 2000?

Answer 15

If they were married on December 10, 2000, the Recognition of Customary Marriages Act 120 of 1998 would apply to their marriage. The legal requirements for a valid customary marriage entered after November 15, 2000 are provided for in section 3 of Act 120 of 1998 and are as follows:

1. The prospective spouses must both be over the age of 18.

In this case, both of them were not over 18 years old. According to the Act, they therefore required the consent of both their parents and just their respective fathers in order to enter into the customary marriage. Their marriage is therefore not valid, since it did not comply with this requirement

Question 16

How does non-registration affect the validity of a customary marriage?

Answer 16

Non-registration has no effect on the validity of such marriage, the marriage is valid.