During 2020, I authored an article specifically analysing the Recognition of Customary Marriages Act 120 of 1998 and the legal implications thereof. Five years later, the position has not changed, and the legal intricacies have become even more contentious.
Section 3 of the Act sets out the requirements. The prospective spouses must both be above 18 years; must both consent to be married under customary law; and the marriage must be negotiated and entered into or celebrated in accordance with customary law.
In LNM v MMM (2020/11024) [2021] ZAGPJHC 563, the Court found a valid customary marriage had been concluded based on the parties’ actual conduct — including handover of the bride and cohabitation.
In Tsambo v Sengadi (244/19) [2020] ZASCA 46, the SCA confirmed that lobola negotiations, payment of R35 000, and ensuing celebration constituted a valid customary marriage.
A valid customary marriage is automatically in community of property unless a valid ante-nuptial contract was concluded beforehand.
In Monyepao v Ledwaba (case no 1368/18) [2020] ZASCA 54, a husband’s subsequent marriage was null and void because he failed to dissolve his first customary marriage — and the R3.5 million estate passed to his first wife.
The legal landscape surrounding customary marriages is nuanced and frequently misunderstood. Prospective spouses should seek legal counsel prior to engaging in traditional marriage processes.