When Siphokazi Ndzingi’s long-term sweetheart, Mduduzi Ndzingi, proposed to her in 2015, a customary marriage was the easy choice. ‘The decision wasn’t up to us because when Mduduzi paid lobola, our parents told us to have a traditional wedding. And, we didn’t have a problem with that,’ Siphokazi says. She adds that she was raised by parents who took pride in their culture and traditions. Her father always explained to her how the Zulu culture worked, and what would happen when she got married. Unlike a civil union, where two individuals are joined in marriage, the customary type goes further than that.
According to candidate attorney at the University of the Witwatersrand Centre for Applied Legal Studies, Vuyolethu Mntonintshi, certain requirements have to be followed for a customary marriage to be recognised. ‘Customary marriages occur gradually, and are not concluded by a single event, such as a ceremonial signing of an official document. It is a process and series of events, such as the negotiations and payment of lobola, handing over of the bride to the groom’s family, etc.’
Siphokazi feels that not only is a customary union a sign of respect to your family, but also to your ancestors as there are customary rites that have to be observed. ‘As an African, it gave me so much pride to follow my culture.’
CUSTOMARY MARRIAGE
A customary marriage is entered in accordance with the traditions and customs of indigenous African customary law. This type of union is recognised in South Africa in terms of the Recognition of Customary Marriage Act (RCM) 120 of 1998. Parliament was asked to pass this law to ensure that government promotes and encourages diversity in culture, and to remove laws that were discriminating against customary marriages under the apartheid government. ‘Customary marriage in terms of section 3(1) of the RCM must meet these requirements: the prospective spouses must be over the age of 18 and both consent to marrying under customary law, the marriage must be negotiated, entered into or celebrated in accordance to the law,’ says Vuyolethu.
Unlike a civil union, where the marriage has to be officiated by a religious leader or authorised official to be valid, a customary marriage is acknowledged by the people who practise the custim; including the family. Cultural expert, Dr Nomagugu Ngobese, believes that the customary marriage still holds weight in many African traditions.
‘A customary union is important as it connects spiritualities from the groom and bride’s family. We also believe that the bride comes to help build the family, which is why both families need to approve.’
With South Africa having different ethnic and cultural groups, there’s been a debate on when the marriage can be officially recognised. But, Vuyolethu makes it clear that if it meets the requirements (specific to each culture) and the community that practises the custom is aware of it, then it is regarded as official. Siphokazi says that one of the important things to observe when entering a customary marriage is to be acknowledged by your husband’s family, after being handed over by yours. ‘My husband’s family slaughtered a goat for me, and smeared me with the bile. This was done to introduce me to their ancestors so that they would acknowledge and protect me,’ she says.
DEALING WITH DIVORCE
While divorce is the last thing on your mind when you are getting married, unfortunately it is a possibility. Dr Nomagugu says that traditionally, among many African cultures, divorce didn’t exist. ‘We never had divorce back in the day, but now African people are westernised. And, it seems easy to divorce in the western community because the people who are involved are individuals,’ she says. She adds that currently, the magistrate must get involved in the customary marriage affairs. She believes that this is because people have lost their identity, as the laws are created by people who are academics. ‘It should be the elders who are advising on matters such as customary laws,” she emphasises. She also disagrees on how a customary marriage is dissolved these days. According to the law, this type of union must be dissolved by an order of a competent court, which is in terms of marriages that are registered. ‘In ancient customs practised among the Xhosa people, a marriage is only dissolved by the two families that negotiated lobola Both parties reach an agreement that the lobola cows be returned to the husband’s family,’ says Vuyolethu.
AN UNREGISTERED MARRIAGE
Stories of women who have left their customary marriages with nothing are not uncommon. Vuyolethu stresses the importance of registering yours, especially if you have assets such as property together. ‘The marriage must be registered within three months after the wedding has taken place.’ But, couples who were married before the RCM Act began can still register their marriages. ‘An unregistered marriage is declared to be out of community of property, meaning that couples will lose the right to share in the assets and estate of the other when they separate. In some cases, women who have divorced have lost everything that they had put into the marriage because they failed to register it,’ Vuyolethu says.
If your marriage is registered, that means that it will be recognised as being in community of property, and you have a share in each other’s estates. And, you can even inherit a half-share of your spouse’s estate upon their death. But, failure to register a customary marriage does not affect the validity of that marriage.’
A STANDARD CUSTOMARY LAW FOR ALL CULTURES
With customary law, there is no one-size-fits-all approach. It is constantly changing as traditions evolve. ‘South Africa and the rest of Africa is very diverse, and culture and customs are practised differently,’ Vuyolethu says. In a customary law, the case is looked at in terms of that specific culture, their customs and requirements of that group. ‘An interesting phenomenon occurs when cultures and customs clash. For instance, when a Xhosa man marries a Venda woman, a balancing act has to occur to avoid ethnocentrism and patriarchy, where the custom of the man supersedes that of a woman,’ she concludes.
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