South African Customary Law consists of various customs, traditions and practices that are carried out, including during the process of getting married. It forms part of the observations of culture and traditions that date back decade upon decade. However, unfortunately, with time the most sacred traditions are being opened up to abuse.
In many South African customs a man may ask for his partner’s hand in marriage. This is customarily followed by sending a letter of intent to her family for lobola negotiations to commence. On the day of the negotiations the families agree on a set figure, which is not necessarily only a monetary amount but may include livestock, clothing and other items like blankets. This is seen as a form of gratitude that a prospective husband affords to the prospective bride’s family. A portion of this agreed upon arrangement is paid upfront. The families celebrate the newly found union and the wedding date for the customary marriage is set. To the groom and bride, the joy of tying the knot and having the dream wedding overshadows the realities they may soon face.
Although not a requirement of a valid customary marriage, in the eyes of the law, lobola is one of the most common practices.
In terms of section 3 of the Recognition of Customary Marriages Act 120 of 1998, the requirements for a valid customary marriage are that both parties must be above the age of 18, both parties must consent to the marriage and the marriage must be negotiated, entered into and celebrated. There is an assumption that after lobola has been paid the couple can start living as husband and wife, however often various other traditions and practices still need to take place.
One such tradition is also one that has become abused over the last few years, that of uMembeso or izibizo. uMembeso or izibizo is a Zulu tradition which involves the giving of gifts to a bride’s family. These gifts traditionally included blankets, pinafores, head scarves, clothes, food and straw mats amongst others.
However, over the years these gift requests by the bride’s family have become increasingly costly branded items and gadgets. The young grooms are forced to incur debt to make these gift requests a reality. Some customary marriages have thus seen a change over the years as uMembeso has been used to fund such luxuries at the groom’s expense. This, as a result, is discouraging young couples from getting married as they are unable to afford these sorts of practice.
According to StatsSA the registration of customary marriages decreased by 11,7% from 2018 to 2019.
A customary marriages is by default an “in community of property” marriage, except where the parties have entered into an antenuptial contract. The result is that after the big celebrations and the dust has settled, the young couple are straddled settling the debts from these lavish gifts.
The questions we are faced with are whether this once sacred practice has lost its true meaning and whether “culture” is being misused for hidden agendas that fall outside the customary marriage rituals and practices.
Are we now living in world where we incur years of debt by abusing customary marriage practices? Or worse still, have customary marriages rather become a sad situation of “who can afford to get married”? It, unfortunately, seems as if we are entering a new era that will see expensive shoes, bags and cars being the standard of uMembeso and financial affordability the measure in getting married.
Adams & Adams attorneys have a specialised family law team to cater for all your family disputes, inclusive of Customary marriage Law.
Shani van Niekerk and Sikelela Masumpa