The Existence and Demise of Customary Marriage in South Africa

The legal and cultural implications of customary marriage collapse.

By Siviwe Cingo (Staff writer)

Lobolo has been a cultural conception and ritual that has been widely contested and debated. It is often dichotomized into being an initiator or a constraint of customary marriage. The lobolo process and practice differ across cultural contexts as well as its rules and principles. Lobolo has many additional names such as bogadi, bohali, munywalo and ikhazi, partly because they carry varied connotations that remain indexical per culture. Despite all of that, lobola remains widely valued in various ethnic traditions. The lobolo custom is a process that involves the payment of lobolo, also known as a dowry, by the groom’s family elders who are sent to the bride’s home to ask the bride’s family for the bride to marry the groom. Traditionally, it is a custom of mediating family relations. Lobolo is thought of as the crux of the marriage, although the customary law act does not recognize it as the foundation of traditional marriage. Lobolo is indicative that the groom will take care of the bride, but that may not always be the case.

Historically, lobolo was property handed over to the bride’s family in the form of cows. In contemporary times, cash is predominantly used. The value of lobola due to the bride’s family depends on how many children the woman birthed and if she has married before or not, as well as whether she is a virgin or not. Today this is still considered a big factor in paying lobola. However, the woman’s material status and education seem to have increased the value of the lobolo paid on her behalf. Every cow within the lobolo carries meaning and representation of the bride’s value.

According to African culture and the African custom, practising lobolo signifies marriage. Marriage is not recognized in African culture if it is unpaid to the bride’s family. On the contrary, South African law does not recognize a marriage that is not legally registered regardless of whether lobolo has been paid. For the marriage to be legally recognized and deemed existential, it must be registered under the auspices of the Customary Marriage Act of 1998. Concerning lobolo, the Customary Marriage Act of 1998 indicates that the giving of lobolo should not be prohibited, nor should there be any restrictions imposed on the amount payable. Also, the acts by which the parties purport to marry may vary. A lobolo agreement is usually negotiated before a civil or Christian ceremony or, the parties might combine a lobolo agreement, a traditional wedding ceremony and the Christian right. Another option may be a lobolo and a traditional initiation of the bride into the groom’s family.

In legal terms, lobolo does not validate the customary marriage. For it to be deemed valid, the couple must register under the Recognition of Customary Marriages Act of 1998 (RCMA). Therefore, customary law bounds customary marriage. RCMA defines customary law as “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those people”. The intended matrimonial couple is obliged to register their marriage at Home Affairs under customary law. Although the Customary Marriages Act of 1998 recognizes customary marriages, it does not mention what happens to lobolo when the marriage ends. In some cultures, when nuptials disintegrate, the husband is permitted to repatriate the lobolo if he did not breach his promise in marriage. However, the lobola money is held against him by his in-laws, if he is found to be at fault for the end of the marriage. There are rules and conditions for the retention and refund of Lobolo. Furthermore, the legal implication of a marriage collapse is that the customary marriage can only be dissolved in terms of the act. The act stipulates how customary marriages are dissolved. Section 8(1) of the customary law states that the marriage may be dissolved in court by a decree of divorce on the condition that the marriage breakdown is irretrievable. It is common cause that when customary marriages become unsuccessful, women bear the most brunt and could be left in need and destitute, especially in an antenuptial contract marriage with disparities of gender rights and power that engulf it.

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