A customary marriage is deeply rooted in the culture of South Africa. Rich in tradition, and guided by practices which have been in place for hundreds of years, customary marriages are a vital aspect in many communities across the nation. These traditional marriages come in various forms, each one carrying its own set of requirements and implications. Thus, understanding these various forms is necessary for anyone who wants to have a customary marriage.
What is Customary Marriage?
A customary marriage is a union between two spouses that is accomplished in line with the customs and traditions of a particular cultural group from South Africa. Unlike civil or religious marriages which are entirely governed by written laws and specific ceremonies being practised, customary marriages are deeply rooted in the customs and traditions that are handed down orally through generations in various cultural groups.
In customary marriages, spousal support is a crucial aspect. Both spouses have a duty to support each other financially, emotionally, and physically. This support extends to any children born within the marriage.
Types of Customary Marriages
The most common types of customary marriage include the following;
Lobola-Based Marriages
This is one of the most common forms of customary marriage in South Africa. It involves payment of lobola (bride price) by the groom’s family to the bride’s family. The payment of lobola symbolizes respect, commitment, and unity between the two families.
Polygamous Marriages
These are recognized under South African law, although certain conditions must be met. In a polygamous marriage, a man is allowed to have more than one wife. The wives enjoy equal rights and are all considered legal spouses.
Legal Recognition
Customary marriages are governed by the Recognition of Customary Marriages Act of 1998. This legislation provides a framework for the registration, validity, and dissolution of customary marriages, ensuring that they have the same legal standing as civil and religious marriages in the country.
Requirement for Validity
To be recognized as a valid customary marriage, certain requirements must be met:
- Both parties must freely and voluntarily consent to the marriage.
- The marriage must be entered into in line with the customs and traditions of the cultural community to which the spouses belong.
- Lobola (bride price) negotiations may be part of the customary marriage process in some communities but are not a legal requirement for validity.
Community of Property in Customary Marriages
In customary marriages, the inevitable legal regime is that of in community of property. This means that the assets and liabilities acquired during the marriage are owned by both spouses jointly as their mutual property.
In community of property could hold significant implications during the dissolution of a marital estate or in the event of the death of either spouse. Both husband and wife are the coequally rightful owners of the assets arising after the marriage irrespective of who acquired them. The debts incurred by one spouse are also the responsibility of both spouses.
If you would like to do a customary marriage out of the community of property, you need to sign an antenuptial contract before the marriage takes place. You can contact us and one of our expert attorneys can consult with you on what your best options are.
Conclusion
Having knowledge about customary marriage in South Africa is vital for couples entering into such unions. Remember, it is always advisable to seek legal advice when entering into a customary marriage to ensure that both parties fully understand their rights and obligations. At Brune Attorneys, we believe in good relationships that add value to our clients. We will help you draft contracts that are in the best interest of both spouses to ensure security for their assets, which comes with peace of mind for such unions.