Thabiso Tshukudu discusses customary marriage in South Africa, when unregistered customary marriages are legally valid, and the importance of registration.
Transcript
[00:08][Eon] Welcome to this week's Legal Talk here on eRadio with Hahn & Hahn Attorneys. Today, Thabiso Tshukudu joins me, and we are talking about customary marriage. Now, the scenario is: Thandi's partner paid lobola. So, they lived together for ten years, and they had children, but they never registered the marriage. Now, he has now died, and the question is: is Thandi legally his widow? I see on our poll on LinkedIn, 97% said yes, but what does Thabiso say about it? Thabiso?
[00:48][Thabiso] Hi, Eon. Thank you so much for the invitation. And the answer is yes. Many people believe that an unregistered customary marriage isn't a real marriage, and that is actually a myth. If the legal requirements for a customary marriage were met, Thandi is a spouse in law, with or without a certificate. She can inherit and claim her rights as a widow. What she has to do, though, is to prove that the marriage took place.
[01:20][Eon] Okay, and what makes a customary marriage valid here in South Africa?
[01:25][Thabiso] Well, Eon, the Recognition of Customary Marriages Act of 1998 set out three requirements for marriages concluded after the Act came into effect. Number one: both spouses have to be 18 years or older. Number two: both must consent to marry each other. Number three: the marriage must be negotiated and entered into or celebrated according to customary law. This usually means lobola negotiations between the families and the customs that follow. If these requirements are met, the marriage is valid. A church ceremony, a marriage official, or a white dress is actually not necessary.
[02:09][Eon] Okay, so if registration isn't needed for validity, why actually bother registering at all?
[02:16][Thabiso] Well, the Act says spouses must register their marriages with Home Affairs. However, it also states that failing to register does not affect the validity of the marriage. That is section four of the RCMA. Registration is about proof. It's not about validity. A marriage certificate is the easiest way to show a bank, a pension fund, or a master of the high court that you were married. Without one, you may need witnesses, lobola letters, you may need photographs. There are many disputed cases that involve customary marriages, and you may need a court order if it does get to that point.
[02:58][Eon] Thabiso, do all the traditional rituals have to be completed? You know, such as the handing over of the bride?
[03:06][Thabiso] Well, not necessarily, Eon. You would probably know the case of Jabba H.P., who was a rap superstar in South Africa, and when he passed on, there was this huge dispute between the wife and the family, and the matter was ultimately decided by a court. As the case in Mbungela versus Mkabi, decided by the Supreme Court of Appeal in 2019, shows, the couple had concluded lobola negotiations, and part of the lobola was paid. Celebrations took place, but the formal handing over of the bride to the groom's family never happened, and you know that's very important in African culture. After the man died, his family argued that no marriage actually existed. The court disagreed. It said customary law is living and flexible, and the handing over of the bride is important, but not an absolute requirement. It can actually be waived, either expressly or by conduct. Because the families had accepted the couple as married, the marriage was valid. The lesson is that courts look at what the families actually did and accepted, not a rigid checklist.
[04:25][Eon] Okay, and what should couples do to protect themselves? Have you got any advice for us, Thabiso?
[04:31][Thabiso] Well, three things are important for couples to do who are married in terms of customary law. Number one: register your marriage at Home Affairs. If late, do it anyway. It's better to do it late than to wait for an eventuality where there is a huge dispute between families who dispute the marriage. Number two: keep proof, such as lobola letters, the names of the negotiators, witnesses, and photographs of the ceremonies. Number three: know your property regime. A monogamous customary marriage concluded after the Act is actually in community of property, unless you sign an anti-nuptial contract. Husbands want to take another wife, they must apply to court for approval of a contract regulating the matrimonial property. There was a case called Mayelane versus Ngwenyama, where the court said the first wife's consent is required for the husband to enter into a second marriage. And my closing line is simply this: your customary marriage doesn't need a certificate to be real, but it does need one to be easily proven. Order the tradition and protect it with paper.
[05:53][Eon] And that's Thabiso Tshukudu from Hahn & Hahn Attorneys joining us here on Legal Talk today.