05/09/2023
REASONS TO HAVE AN ANTE-NUPTIAL CONTRACT BEFORE THE PAYMENT OF LOBOLA
A DONDA ATTORNEYS ARTICLE
In recent times, there has been a lot of confusion in customary marriages. There are people who are not are aware of how the law defines customary marriages based on the living law. We will look at ante nuptial contracts, the definition of customary marriages and the reasons to have an ante-nuptial contract before payment of lobola...
1. ANTE-NUPTIAL CONTRACT /OUT OF COMMUNITY MARRIAGE SYSTEM
a) Out of community without accrual
In these marriages, the spouses will sign an antenuptial contract with an attorney called a notary and this will be to be clear that they do not share assets or liabilities. The most common phrase used is “what is yours is yours and what mine is mine “. This marriage is ideal for the wealthy in my view. The essence of the phrase “without accrual “is that even assets gained during the subsistence of the marriage are not shared.
b) Out of community with accrual
In this marriage, the spouses will have assets that they bring into the marriage that they will not share. The example is when a spouse brings a house or car; this will remain part of his or her estate even when they divorce. There will be assets that they will share that and gain during the marriage. The assets from inheritance are not included in the accrual system.
Now that we are clear on the above what is lobola?
2.The significance of lobolo in a customary marriage.
The practice of lobolo is one of the customs that differentiate a civil marriage to a customary marriage. The lobolo agreement is between the family of the prospective husband and the prospective wife, the main reason being that customary marriages are aimed at bringing the families of the bride and the bridegroom together. The Recognition of Customary Marriages Act 120 of 1998 defines lobolo as thus:
‘the property in cash or kind ,whether known as lobolo ,bogadi,bohali ,xuma, lumalo,thuka,ikhazi,magadi,emabheka,or by any other name which a prospective husband or the head of his family undertakes to give the head of the prospective wife’s family in consideration of a customary marriage’
It may consist of cattle or any other animals that the parties agree upon, due to modern influence it is most cases paid in cash.
3. WHAT IS A CUSTOMARY MARRIAGE?
Requirements for validity of customary marriages. (customary law).
In the constitutional dispensation, there have been changes in how the law looks at customary marriages. These changes are due to the Recognition of Customary Marriages Act of 1998.
Section 3 of the Act states that the below stated are the requirements.
1. Capacity to enter into a customary marriage (this means the person concerned must have the right age -18 years and above)
2. Consent of the bridegroom and the bride.
3. Consent of the father or guardian of the bride.
4. Payment of ilobolo –note case law below.
5. The handing over of the bride.
In relation to point 4 and 5 it’s that the “The marriage must be negotiated and entered into or celebrated in accordance with customary law".
Case law states that if the above is done then the marriage is complete, even if you have not registered the marriage at Home Affairs and even if the lobolo is not paid in full.
In the recent times, there has been a lot of confusion in customary marriages. There are people who are not are aware of how the law defines customary marriages based on the living law.
1. THERE IS POSSIBILITY THAT AFTER THE PAYMENT OF LOBOLA AND THE FULFILMENT OF THE ABOVE MENTIONED REQUIREMENTS YOU WILL BE IN A CUSTOMARY MARRIAGE.
2. CUSTOMARY MARRIAGE IS IN COMMUNITY OF PROPERTY.
3. LOBOLA DOES NOT HAVE TO BE COMPLETE TO HAVE A CUSTOMARY MARRIAGE
4. THE CUSTOMARY MARRIAGE DOES NOT HAV TO BE REGISTERED
6. THE FINALIZATION OF THE CUSTOMARY MARRIAGE WILL HAVE UNINTENDED CONSEQUENCES ON YOUR ASSETS AND LIABILITIES
7. IN CASE ANYTHING BAD HAPPENS THIS WILL LIMIT DISPUTES
Notable cases with customary marriages that were in the community of property...
1. HHP paid lobola to the family of Lerato, on his death, his family disputed that there was a marriage. The courts stated that there was and it was in the community of property
2. Mkabe vs Home Affairs and others 2014, on the death of his wife, took this matter to court so that the court can determine that there was a customary marriage. The family of his wife disputed that there was a marriage. The courts stated that based on law there was a customary marriage and it was in a community of property.
There are a number of cases where the above has happened....
Conclusion
Consult an attorney before the payment of lobola
Disclaimer: This is not legal advice it is a legal opinion by the attorney below, it’s advisable you consult an attorney of your choice directly.
The article was written by
Melusi Xulu –Managing Director at Donda Attorneys
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