Pretoria - Marriages performed under the Recognition of Customary Marriages Act 120 of 1998 are recognised as legal marriages and such, a marriage must thus be dissolved in a court through a divorce.
This is according to leading divorce attorney Selwyn Shapiro, who said prior to this act being promulgated, customary marriages were not recognised as legal in our country.
But since the Act came into force and these marriages are now recognised in law, it followed that the union had to be dissolved through divorce.
But Shapiro said to be recognised as a valid customary marriage, the parties have to be over 18 years-old, both had to consent to the marriage, lobola had to be negotiated and paid, and the marriage had to be celebrated in terms of the custom of the couple. This last aspect, Shapiro said, may vary from tribe to tribe.
He said it was not always a clear-cut issue, as illustrated in a case in which he is appearing in, and in which the “husband” is contesting that the marriage was indeed concluded.
In this case, the “wife” claimed that she and her “husband” were legally married under the customary law. She is asking, among others, for a divorce order as well as maintenance from her “cheating” husband.
He, on the other hand, claimed that there was no valid customary marriage as it was not celebrated in accordance with customary law. He said the lobola formalities were only partially concluded and there was no handing over of the bride from her family to his family.
He also complained that there was no ritual slaughtering of an animal to symbolically establish a blood bond between the two families through marriage.
Shapiro said these issues can be complicated and in this case, they will call on experts on indigenous law to shed more light on what customs had to be followed and what was required for it to be recognised as a valid marriage in terms of the Customary Marriages Act.
The Supreme Court of Appeal Court in Bloemfontein (SCA), earlier in a similar case regarding the issue of when does a customary marriage become valid, commented that African law and its customs are not static, but dynamic.
Then Appeal Court justice Lebotsang Bosielo in that judgement commented that the requirement of the Customary Marriage Act required that the marriage must be negotiated and entered into in accordance with customary law.
“Customary law is as diverse as the number of different ethnic groups we have in this beautiful country. Although Africans, in general, share the majority of customs, rituals and cultures, there are some subtle differences which, for example, pertain exclusively to the Ngunis, Basotho, Bapedi, VhaVenda and the Vatsonga,” Judge Bosielo said.
As there are so many ethnic groups and customs, it is often problematic for a court to determine which is applicable to a particular case. In these cases the assistance of experts are often called in to assist the court, the judge said.
Independent Online this week reported about a similar case where a woman is claiming R63 000 a month maintenance from the man she claimed she married in terms of customary law. She said she was in the process of divorcing him and as she had to give up her job and become a housewife during their marriage on his insistence, she was now down and out without her husband’s income.
He, on the other hand, denied that the marriage existed, as he said all the formalities and rituals had not been complied with in terms of the Zulu culture.