The practice of lobola is an intrinsic part of getting married for many South Africans. But is it a tradition or a legal process?
A legal marriage protects your rights, particularly your property rights, if the marriage fails. That’s why it is important for South Africans to know the relationship between lobola and a legal marriage.
Lobola itself is not marriage, but rather a part of the process of getting married under customary law.
This law clearly stipulates that in order for the customary marriage to be legally recognised, it has to be entered into by a man and woman over the age of 18 years who have the intention of getting married under customary law. (In South Africa, couples of the same gender are allowed to marry under the Civil Union Act of 2006.)
It is very important to celebrate the customary marriage after lobola negotiations have been concluded. By merely paying or receiving lobola in full without the requisite celebration, the marriage is not concluded in accordance with customary law, and therefore considered invalid.
The way in which a customary marriage is celebrated after the conclusion of the lobola negotiations differs from culture to culture. Most cultures welcome or incorporate the bride (makoti) into the new family through song and dance, slaughter a sheep and exchange gifts, blankets and knives.
Lobola letter insufficient
The problem is that the only proof you may have that some form of union existed is the lobola letter, and this alone may not be sufficient to prove that a customary marriage existed.
When the legality of the marriage is disputed, the courts have to evaluate each case on its own merit, guided by the prevailing customs and practices of the particular jurisdiction.
Many couples tend to take a break after the lobola process is concluded to save money for a celebration without realising how crucial it is that a traditional ceremony also takes place as soon as possible.
If the ceremony is not conducted, and the marriage is not registered, the marriage may be hard to prove and may not be recognised under the Recognition of Customary Marriages Act. This means you may stand to lose your claim on any assets you may be entitled to if the marriage fails or if your spouse dies.
If you don’t register the customary marriage with Home Affairs, it does not necessarily mean it is invalid, but it makes it harder to prove.
If your marriage is not registered, you will have to approach the High Court to apply for a declaratory order to legally confirm that you were indeed married under customary law.
The judge will then have to exercise his/her discretion in deciding whether you and your spouse can be declared as married.
In such cases, the courts may also be guided by custom experts who understand the laws of different cultures. The courts may also need affidavits from family members stating what actually happened. Additional evidence, such as photos of the celebration, could also be helpful.
A customary law marriage amounts to an in-community of property marriage, in which the couple jointly own the assets and liabilities of the joint estate.
A legally recognised marriage therefore protects your rights if the marriage ends.