by Sarah Gama, Attorney
Legal consequences of a customary wedding
The conclusion of a customary / traditional wedding is a time of great joy for many families. It marks the beginning of new relationships and the expansion of families. In the midst of the preparation of the festivities, many couples do not consider what the legal consequences are for the couple after the conclusion of the customary / traditional wedding. This article will briefly consider some of the legal consequences which arise as a result of the conclusion of the traditional wedding. For ease of reference, we will refer to traditional weddings as a customary wedding / marriage.
When does a customary marriage come into existence
The Recognition of Customary Marriages Act, 120 of 1998 (the “RCMA”) is the primary legislation or Act which determines whether a customary marriage has been concluded. It also sets out the legal consequences of that marriage. According to the RCMA, a valid customary marriage has been concluded if the following requirements have been met:
1) the prospective spouses must both be above the age of 18 years old and they must both consent to be married to each other under customary law; and
2) the marriage must be negotiated and entered into or celebrated in accordance with customary law.
The question about whether the above requirements have been met has to be determined based on the facts of each case or marriage. This is especially true given the fact that South Africa has many cultures which practice different customs and traditions. The courts have noted in the past that customary law is a dynamic system meaning that it changes over time and is practised in different ways according to each culture and also amongst families within the same culture. Therefore, strict compliance to a particular tradition or ritual is not a requirement for the conclusion of a valid marriage in terms of the RCMA.
The marital regime of the customary marriage
The default marital regime for a couple married in terms of customary law is in-community of property, unless the couple concludes an ante-nuptial contract stating that they want to be married out of community of property. Being married in-community of property means that the spouses’ estates (what they own/assets and any debt/liabilities) are joined together and each has the right of disposal over the assets. Each spouse has an undivided or indivisible half share of the joint or communal estate. If a couple does not want to be married in-community of property they have to conclude an ante-nuptial contract before the marriage ceremony stating that they want to be married out of community of property (which may be subject to accrual).
Our courts recently considered the question of whether a customary marriage in terms of the RCMA was concluded in the much-publicised case of Tsambo v Sengadi (244/19)  ZASCA 46 (30 April 2020). This case dealt with the question of whether Lerato Sengadi was the customary law wife of Jabulani Tsambo, also known as HHP or Jabba.
In the Sengadi case, the lobola negotiations in terms of the Tswana culture were concluded by the couple. Most of the lobola amount had been paid and a small celebration, in the presence of family and friends, had taken place soon after the lobola negotiations. During the celebration and in other instances, Lerato was referred to as Jabba’s wife by Jabba’s family including his aunts and father. No other ceremony took place after this. After these events, Jabba and Lerato lived together and shared many household expenses. After a few years however, Lerato and Jabba’s relationship broke down and Lerato moved out of their home. However, the couple reconciled after a few months. Jabba unfortunately passed away shortly after the reconciliation but before Lerato could move back in to their home. One of the questions that the court had to consider was whether a marriage had been concluded in terms of the RCMA and that Lerato was Jabba’s customary law wife.
The court held that based on the facts, Jabba and Lerato had concluded a customary marriage in accordance with the RCMA and therefore Lerato was Jabba’s wife for all intents and purposes. The court further held that the lobola negotiations and the celebration thereafter complied with the requirements of the RCMA. The fact that Lerato and Jabba lived together and shared household expenses also indicated that they intended for a customary law marriage to come into existence when the lobola negotiations were concluded. Due to the fact that an ante-nuptial agreement had not been concluded by the parties before the conclusion of the marriage, the couple were married in terms of the in-community of property marital regime. This case follows a previous decision made by the Supreme Court of Appeals which found that a valid marriage in terms of the RCMA had been concluded by a couple after the conclusion of lobola negotiations only.
The case above highlights the fact that couples who wish to be married in terms of customary law and who want their marital regime to be out of community of property should, with the help of a lawyer, conclude an ante-nuptial contract before the commencement of any traditional or customary ceremonies. Failure to do this will result in the marital regime being in-community of property. It should be noted that it is possible for couples to change their marital regime after the conclusion of their marriage, however this may be a long and expensive exercise. We suggest that couples should obtain advice from an attorney before the commencement of any traditional or customary ceremonies in order to ascertain their legal positions. Speak to Sarah Gama of our offices at firstname.lastname@example.org to obtain advice regarding your marital regime.
(C) Spence Attorneys. This article is for information purposes only and should not be regarded as legal advice. Always seek legal advice from an attorney. Spence Attorneys will not be held liable for any person acting on the information contained in this article.