What is a customary marriage? And when is it valid? An expert explains

Customary law expert and lecturer Zama Mopai says when it comes to customary marriage, each case needs to be dealt with on its own merits.

Mopai says there are two types of customary law; living customary law and official customary law.

Official customary law is reflected in legislation while living customary law is reflected in every day practices and differs in various communities.

Last week, the court ruled that Lerato Sengadi was married to late rapper HHP in terms of customary law, despite his family arguing that certain marriage rituals weren't completed.

Judge Ratha Mokgoatlheng ruled that legislation regarding customary marriages do not require the bride to be "handed over".

The judges explained that the law recognises the following requirements for a customary marriage:

  • lobola must be fixed
  • the parties must consent to customary marriage in accordance to customary law
  • parties must be older than 18 years or have parental consent
  • marriage must be negotiated an entered into or celebrated according to customary law

Mopai advises that customary marriage must be registered to serve as proof and in order to reflect the marital status of the couple.

However, failure to register the marriage doesn't mean the marriage isn't valid.

According to the Recognition of Customary Marriages Act (RCMA), the only way out of a customary marriage is through a decree of divorce from the High Court, she explains.

Mopai argues that a partial contribution towards the agreed upon lobola amount is sufficient for customary marriage to be valid.

She says the agreement or intention to give lobola alone is not enough.

I do understand where the judge comes from. I agree with the decision that he made based on the circumstances of the case.

Zama Mopai, Customary Law Expert and Lecturer at the University of Venda

The court had to make a decision based on the evidence that was brought before it. Evidence was brought in forms of pictures and documents.

Zama Mopai, Customary Law Expert and Lecturer at the University of Venda

Evidence was brought in forms of pictures

Zama Mopai, Customary Law Expert and Lecturer at the University of Venda

On one side, the judge said the transfer of the bride is not a necessity, on the other side he took the evidence of the celebration.

Zama Mopai, Customary Law Expert and Lecturer at the University of Venda

In one case, the court was very clear that the celebration does not have to be a big ceremony.

Zama Mopai, Customary Law Expert and Lecturer at the University of Venda

For a customary marriage to be valid, you must first enter into the marriage according to custom and the once that is done then you can proceed to register it.

Zama Mopai, Customary Law Expert and Lecturer at the University of Venda

The registration itself does not make the marriage valid. What makes the marriage valid is customary law.

Zama Mopai, Customary Law Expert and Lecturer at the University of Venda

Living customary law is flexible in its nature. It varies from one community to another. It's not uniform.

Zama Mopai, Customary Law Expert and Lecturer at the University of Venda

The agreement alone for me would not be lobola, there must at least be a partial giving.

Zama Mopai, Customary Law Expert and Lecturer at the University of Venda

Listen to the intriguing discussion on The Eusebius McKaiser Show:


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