Customary law – know your rights

Getty Images/Gallo Images
Getty Images/Gallo Images

Hip-hop musician HHP died last week, and while the cause of his death has not been confirmed, it's suspected to be suicide. The star had previously opened up about suffering from depression. 

In a series of tweets yesterday, eNCA senior political reporter Samkele Maseko revealed that Tsambo's customary wife Sengadi had "filed papers" to halt Tsambo’s funeral and is "demanding to know the whereabouts of the deceased’s remains”. Sengadi says that she and HHP had became romantically involved in 2009 and claims that Tsambo paid R35 000 for lobola. The rapper’s family denies the existence of this marriage.

What makes a customary marriage legal?

According to David Thomson, senior legal adviser at Sanlam, for a partnership to be recognised as valid under customary law, the following requirements must be met:

·      Both parties entering the marriage must be over 18.

·      Both must have given consent to be married under customary law. In a polygamous marriage, the other wife/wives need to give consent to the marriage.

·      The marriage needs to be negotiated, celebrated and entered into according to the parties’ relevant traditions and customs. Paying lobola or discussing the payment assists in proving the marriage was negotiated in accordance with custom. But paying lobola is not a legal requirement for a customary marriage and it doesn’t alone stand as grounds for a relationship to be recognised by customary law.

·      The marriage should be registered with the Department of Home Affairs so the relationship’s status is unambiguous.

READ MORE: A feminist in the streets and a makoti in the sheets?

What the law says: Nthabiseng Monareng, an independent family law specialist, explains that in terms of the Recognition of Customary Marriages Act, for a marriage to be regarded as a customary marriage, the woman must be handed over as a wife.

“This involves performing traditional ceremonies where the woman is taken to the male partner’s family. If the male partner only pays lobola and the woman is not handed over as a wife, this will not be legally recognised as customary law marriage. Should the couple separate, there’s no claim to property, unless for those that are jointly owned,” Monareng says.

The Tsambo family representative says the marriage is inconclusive until the bride is taken to the family home of the groom and handed over to them. They argue that this process did not take place, thus the marriage is invalid. Sengadi on the other hand maintains that she has a video of the wedding celebration. 

READ MORE: Can you be a feminist and still practice lobola?

How does one get divorced after being married by customary law?

There are no benefits to separating from an estate planning point of view, says Thomson. “Separation carries no legal weight – you are still married and you don’t have the benefit of legal rules to regulate the ramifications of the separation.

“The only way to divorce is through a court with a signed settlement agreement made by an Order of Court, Thomson explains.

So, if you’re looking into getting married the traditional or customary way, make sure you consult a lawyer.

The battle for who will bury hip-hop star HHP continues at the Johannesburg High Court.

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