CUL 2641 UNIT 2

CUSTOMARY FAMILY LAW

CUSTOMARY MARRIAGES IN SA

CUSTOMARY MARRIAGES
In this unit we are going to learn the following:

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Definition and Concept of CUM

Historical background of CUM in South Africa
Introducing the Recognition of Customary Marriage Act

Essentials of CUM
Registration of CUM
Status and competencies of spouses in CUM
Consequences of CUM
Dissolution of CUM

2.1 Definition and Concept of Customary

Marriage
CUM is marriage entered into according with customary law (s1 RCMA)
It derives its nature from the customs and traditions of the parties entering into it. (who can enter into a CUM?)
In traditional CUL, marriage was entered into by two families and not merely a relationship between the bride and the
groom (however, this is gradually changing due to influence of other social and legal systems operating in society)

CUM is private in its nature, it is not officiated by external parties but the family groups involved
It starts with betrothal where the families negotiate the marriage, usually initiated by grooms family and to be considered
by the brides family

Betrothal may include exchange of gifts as determined by the particular custom, including lobolo
Once, the families reach an agreement in the negotiations, then a marriage may be entered into
CUM is polygamous in its nature it allows a man to marry more than one wife

LOBOLO/MAGADI/BOH
ALI,XUMA/LUMALO/TH
AKA
Lobolo is property in cash or kind
which the prospective husband or
the head of his family undertakes
to give to the head of the
prospective wifes family in
consideration of a customary
marriage (s1 RCMA)

CONCEPT OF LOBOLO
In most traditions, giving of lobolo is an integral part in the conclusion of a CUM
There are different sentiments and values attached to the giving of lobolo, such as:
To show appreciation to the brides family for raising her and giving her to the
groom and his family in marriage

For transfer of brides reproductive rights to grooms family

To legitimize the children born of the marriage
As means test towards the groom to determine whether he will be able to provide
for his wife and family

2.2 HISTORICAL BACKGROUND ON

LEGAL RECOGNITION OF CUM IN
SOUTH AFRICA
Until the year 2000 , CUMs were not legally recognized in South Africa
(except in KZN)

spouses in CUM were not considered to be husband and wife (therefore,

they did not owe each other support duties)

Their children were considered to be legitimate

Civil marriage entered into by one of the spouses in CUM with another
party automatically extinguished the CUM

CONTINUE
Limited recognition for CUM was introduced through statutory enactment

such as the Natal Code of Zulu Law Proc of 1987 which applied only in
KZN

Marriage and Matrimonial Property Law Act 3 of 1988, which provided

that a CIVM with another party would no longer extinguish an existing CUM
(see Netshituka v Netshituka)

But still, there was no recognition of CUM. It would only be considered in

estate matters for the purposes of identifying beneficiaries.

2.3 RECOGNITION OF CUSTOMARY

MARRIAGES IN POST-APARHEID SA
First statute to give full recognition to CUM is the Recognition of
Customary Marriages Act 120 of 1998 (applicable since year 2000)

Came as a result of the work and recommendations of the SALC Project 90

of 1998 on the Harmonization of COM and INL Report on CUM

It allows for CUM to be entered into according to traditional practices

It also provides for administrative governance of CUM

2.4 THE PURPOSE OF THE RCMA

To make provision for recognition of CUM

To specify requirements for valid CUM
To regulate registrations of CUM

To provide for equal status and capacity of spouses in CUM

To regulate proprietary consequences of CUMs
To regulate dissolution of CUMs
To repeal certain provision of certain laws

2.5 CUMs RECOGNIZED BY THE RCMA

s2
All CUMs valid and existing at the commencement of the Act are fully
recognized (including polygamous marriages)

All CUMs entered into after the commencement of the RCMA, and which
complied to all requirements of the Act are recognized (including
polygamous marriages)

2.6 REQUIREMENT FOR VALID CUM

s3
1. Prospective spouses must be above age of 18 years
2. Both consent to marry each other according to customary law
3. Marriage must be negotiated and entered into or celebrated in accordance with CUL
Parties under age of 18 year require parental/guardian consent in order to enter into the marriage (see s5)
RCMA allows CUL to determine which persons are prohibited from marrying each other under CUM based
on blood relation or affinity.

Parties in CIVM may not enter into a CUM

See Maluleke v Minister of Home Affairs (02/24921) [2008] ZAGPHC 129 (9 April)

STATUS AND CAPICITY OF SPOUSES

s6
Spouses in a CUM have equal status and capacities
They can acquire and dispose assets equally
Can enter into contracts and litigate

REGISTRATION OF CUM
s4
Parties in a CUM have the duty to register their marriage within prescribed time period
Either spouse may register the marriage, provided they produce required information to the

existence of the marriage, identities of the spouses, date of marriage and lobolo agreed together
with witnesses

Any other person with sufficient interest may also register the CUM e.g. children
CUM may only be registered by a competent official qualified to do so, who must be satisfied that
indeed there is an existing and valid CUM

Registering officer will issue certificate of registration, which will serve as prima facie proof of the
existence of the CUM

However, failure to register a CUM does not invalidate the marriage. Registration of CUM only
serves as proof of existence of the marriage.