Getting married is a life-changing step that you take. It’s a joyful moment and an incredible time of your life.
There is confusion with paying lobola whether that alone signifies a customary marriage or not. The practise of lobola is an intrinsic part of getting married for many South Africans. But is it a tradition or a legal process? Traditional marriages are recognised as lawful if registered even if you pay lobola and celebrate the wedding.
In a Q&A with Attorney Tebello Motshwane at Sister in Law, she explains that paying lobola only is not recognised as being legally married.
If you pay lobola in total and there was no celebration as yet, is the couple legally married and what makes the marriage legal?
According to the Recognition of Customary Marriages Act 120 of 1998, there are three requirements needed before a customary marriage is concluded, namely:
- The parties must be over 18 years of age;
- The parties must consent to be married to each other under customary law;
- The union must be negotiated and entered into or celebrated following customary law.
From the above, it is clear that payment of lobola on its own does not result in a customary marriage being concluded. Remember that each case will be judged on its own merits.
Who besides home affairs can oversee the proceedings of a customary marriage?
Home affairs do not oversee the proceedings of a customary marriage. All negotiations and celebrations between the families are observed at home. Once concluded at home, the union must be registered at home affairs within three months of the festival. The role of home affairs is to register the customary marriage, and the only parties who will be present are the couple and one representative from each side who will act as a witness. Home affairs will then issue a registration certificate which is first-hand evidence of the existence of a marriage.
How are the gains and losses calculated when a customary marriage is terminated?
A customary marriage is entered into without an antenuptial contract (marriage contract) signed before the marriage; then, the parties will automatically be married in a community of property. Marriage is a community of property that means that the couple will have one joint estate, which upon divorce will be divided 50/50 between each party. This 50/50 will comprise the common assets minus the joint liabilities irrespective of whose name the debt is. It will apply to debt entered into before the conclusion of the marriage.
How can the parents support the partners of a customary marriage?
Traditionally the parents are involved at the negotiation stage. Still, there is no legal requirement for the parents to be present in the negotiations- the parents can be involved insofar as their customs prescribe.
How best can partners prepare to enter a customary marriage union?
The couple’s attorney (notary public) should assist them with understanding the consequences of each marriage regime. Should the couple does not want to remarry in community of property, they can attend to drafting their antenuptial contract before the negotiations take place (for the avoidance of confusion).