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Summary CUSTOMARY LAW
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Family Law: Topic 8Customary Marriages
٭ In 1996 Constitution – granted force to both ‘state’ and customary law (SA – a legal pluralist system)
٭ Customary law is defined in s (1) of the Recognition of Customary Marriages Act (RCMA) 1998 –
“usages and customs traditionally observed among the indigenous African people of South Africa”,
which “forms part of the culture of those peoples”
٭ A distinction needs to be drawn between codified customary law and living customary law
٭ Codified customary law:
o The official customary law, comprises what was an oppressive form of customary law
developed by colonial and apartheid sates which exists in codes and precedents
٭ Living customary law:
o A system of living norms regulating the everyday lives of people who live according to
customary law. This system of law is dynamic, evolving and context-specific as it adapts to
changes in the beliefs and circumstances of the people it applies to
٭ RCMA came into effect in 2000 – customary law is subject to constitutional review
The Nature of Customary Marriage
- According to the Recognition of Customary Marriages Act:
Customary Law: Customs and usages traditionally observed by
indigenous peoples which contribute to their cultures.
Customary Marriage: Marriage concluded in terms of customary law.
- While there are many different cultural groups with singular practises,
there are some characteristics which are present in many different forms
of customary marriage:
o Linkage of the Families: There is an emphasis placed on the
involvement of both families as a foundation for the marriage.
o Polygyny: While this is no longer a prevalent practice, men are
allowed more than one wife.
o Communal Ownership of Homestead Property : The homestead
head manages the homestead property, to which his wives have
access and right to use.
The Legal Status of Customary Marriage
- Before the Recognition Act, customary marriages had limited legal status
as the legal system would not fully recognise them as marriages.
- They were referred to as customary unions, as the definition of marriage
stemmed from Christianity which defined marriage as ‘an exclusive union
of one man and one woman’ and the potential of polygyny disrupted this.
- The Recognition Act was enacted to fulfil the rights given in the
Constitution and give full legal recognition and equal status to customary
marriages – dignity, respect, equality and freedom of culture and religion.
- S211(3) Customary law is a source of South African law and must be
considered where applicable. However, it is subject to the Constitution.
, - Customary marriages often discriminated against women based on gender
and therefore the Recognition Act aimed to improve their standing by
abolishing rules regarding property, marital power and majority status.
- The Recognition Act recognises all monogamous and polygynous
marriages entered into before the commencement of the Act in 2000
providing that certain requirements are met.
- Customary law covers all matters regulating personal and family life,
including children (care, contact, maintenance and guardianship),
marriages and the consequences of marriage (rights and responsibilities),
succession (who has the right to inherit & the administration of the
estate), land tenure and traditional leaders.
Family:
- A father has a right to his biological children is linked to marriage, and the
question of the child’s family affiliation depends on lobolo
- If lobolo was agreed (with either immediate or partial transfer), the child
belongs to the father’s family
- If no agreement – child belongs to the mother’s family. I this way the
nuclear family is not principle social unit
- In Hlope v Mahlalela – the court disapproved of the role of lobolo in
determining parental responsibilities and rights, and gave preference to
the best interests of the child principle enshrined in the constitution
- Section 21 (1) of the Children’s Act provides the biological father of a child
born out of wedlock can acquire full parental rights and responsibilities in
respect of his child if he “pays damages in terms of customary law”
Requirements for a Valid Customary Marriage
- The requirements for a valid customary marriage include lobolo payment
and the wife’s integration into the husband’s family
- In some cases, full and partial payment of lobolo is a prerequisite for
concluding a valid marriage, while in other agreement for the payment is
sufficient
- Spouse have a duty to register a customary marriage with the Department
of Home Affairs (and either spouse can do so) but the failure to register a
marriage does not affect its validity
٭A spouse cannot inherit if the marriage was not registered (registration
can place after a death as long as there is evidence to prove the
marriage)
- When – and how – a person can marry differs under living and official
customary law
Living customary law
٭Marriage is an agreement between families, to be negotiated by the
elders and sealed by the trasenerfers of lobolo
٭Individuals are considered marriageable when they have been initiated
as it marks the transition to adulthood
- The RCMA sets the min age for marriage at 18 (subject to a few
exceptions)
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