Following the passing of rapper Jabulani ‘HHP’ Tsambo and the controversy behind his customary marriage to Lerato Sengadi, many people have had questions about what customary law actually entails and what validates and invalidates a customary marriage.
We spoke to family lawyer Sthembiso Mabaso to get some clarity on the legal implications of entering into and exiting a customary marriage.
ENTERING INTO A CUSTOMARY MARRIAGE
Section 3 of the Recognition of Customary Marriages Act 120 of 1998, which came into effect on 15 November 2000, states the following points regarding the validity of a customary marriage:
- Both prospective spouses must be over the age of 18.
- Both prospective spouses must consent to be married to each other under customary law.
- The marriage must be negotiated and entered into or celebrated in accordance with customary law.
READ MORE: Who has claim over lobola?
“It’s important to note that payment of lobola on its own is not sufficient to validate a marriage. In fact, the legislation does not necessarily require the payment of lobola. It states that the marriage must be negotiated,” Mabaso explains.
“The second part of that requirement states that after the negotiation, the marriage must be entered into or celebrated in accordance with customary law, which basically requires both parties to do whatever is required in terms of their custom to be considered married,” he adds.
LEAVING A CUSTOMARY MARRIAGE
If the marriage is valid under customary law, it’s important to get a divorce if you part ways – whether you’ve registered the marriage or not. Here’s why.
“When it comes to the end of the marriage and the parties want to go their separate ways, the process of the exit should be treated like any other marriage in the sense that a couple must go to court to get a divorce,” Mabaso explains.
“Parties must go to court on the basis that there has been an irretrievable breakdown of the marriage and they must satisfy the court that the marriage has reached a state of disintegration and cannot be restored.”
For clarity, if you entered into a valid marriage under customary law and then separated from your spouse, but never went to court for a divorce, you are still legally married. This affects your capacity to enter into another marriage.
“It does happen that people enter into customary marriages without registering them and go on to enter into a civil marriage with another person after their first marriage ends. The fact is that if the spouses didn’t file for divorce for their customary marriage, the subsequent marriage is invalid and the ex-partner can take the newly married partner to court to contest that civil marriage,” Mabaso explains.
The Act states that it is the duty of the spouses in a customary marriage to ensure that their marriage is registered and adds that “failure to register a customary marriage does not affect the validity of that marriage”.
“A lot of people think that the registration of a customary marriage is what validates it, but this isn’t the case, and they go on and live their lives with other people and are shocked when their ex-partner files for divorce at a much later stage.”
COMMUNITY OF PROPERTY
Under customary law, the spouses are automatically married in community of property unless there’s an ante-nuptial contract in place that regulates the matrimonial property system of their marriage.
“If there is no intellectual contract in place, then by default, the customary marriage is a marriage in community of property – what’s yours is mine, and what’s mine is yours,” says Mabaso.