The question about legal status of lobola payments and cohabitation is one that gets asked to me from time to time whenever I mediate disputes over deceased estate’s.

Over the years, the legal fraternity and the courts have also made conflicting decisions about the validity of customary marriages and specifically lobola payments.In my observations most confusion arise when a lobola is paid and a couple is considered married and then a letter of lobola serves as a proof of conclusion of customary marriages.

In other instances, couples go to the Department of Home Affairs to legally marry and leave it at that, It is unfortunate that lobola has in some instances been reduced to some sort of transaction without really interrogating what is indeed at the core of lobola in the first place.

The Recognition of Customary Marriages Act was passed in an attempt to clarify the legal status of customary marriages. Section 3(1) of the Act in specific deals with the requirements for the validity of customary marriages. However, the requirements that the marriage must be negotiated and entered into or celebrated in accordance with customary law is vague as it does not specify the actual requirements for a valid customary marriage.

In practice a factual determination still has to be made in order to reach a finding as to whether this requirement has been complied with.In the matter of Mbungela & another v Mkabi & others a Supreme Court of appeal delivered an interesting judgment clarifying the criteria for concluding a valid customary marriage. In this case the bride’s family did not hand her over to the groom’s family, and lobola had not been paid in full. From the judgement the court held that when debating whether a customary marriage has been confirmed, payment of lobola in full or the handing over of a bride into the groom’s family, when viewed in isolation, is not the key determinant. If lobola itself is not marriage but rather a part of the process of getting married under customary law, what then is a key determinant for a valid customary marriage? In light of the aforementioned judgment, it appears to me that a conclusion may be reached that a ceremony of bridal transfer serves as an absolute prerequisite for the validity of a customary marriage as in terms of s3(1)(b) of the Recognition of Customary Marriages Act, 120 of 1998. This means lobola itself is not marriage but rather a part of the process of getting married under customary law. One of the crucial elements of a customary marriage is the handing over of the bride by her family to her new family namely that of the groom.

The handing over of the bride is what distinguishes mere cohabitation from marriage. Until the bride has formally and officially been handed over to the groom’s family there can be no valid customary marriage. In the absence of that act, no customary marriage had come about in this case.

Customary law is not just an infrangible continuum of rituals and usages. It is also not frozen in time. It is very malleable. And, in dealing with matters of this nature, the courts take cognisance of whatever developments and changes which might have taken place within a particular community, provided the process is consonant with the ‘spirit, purport and object of the Constitution.

Cohabitation is another factor that needs to be considered in these circumstances, particularly where the bride’s family never objected to it, or did not display any opprobrium by, for example, exacting from the groom’s family. Couples have to be aware that poof of cohabitation plus the receipt by the woman’s guardian of a substantial number of cattle … may raise presumption that a customary marriages exists. And, if there is no cogent evidence in rebuttal of that presumption, the court will definitely conclude that a valid customary marriage exists (or existed) between the parties.

In KwaZulu-Natal, for instance, all that is required is a ‘declaration’ on the day of the wedding in the presence of an ‘official witness’ from the office of the local traditional leader (see s 38(1) of the Natal Code of Zulu Law 1987 (see Proc R151 of GG10966/9-10-1987 1967) and s 38(1) of the KwaZulu Act on the Natal Code of Zulu Law Act 16 of 1985).

It is also important to note that lobolo itself is not even a legal requirement in that province (see s 38 of the Code) The practice of lobola is an intrinsic part of getting married for many South Africans and prospective couples have to realise a necessity of conducting a traditional ceremony soon after negotiations process is concluded. If the ceremony is not conducted, and the marriage is not registered, the marriage may be hard to prove and may not be recognised under the Recognition of Customary Marriages Act. This means you may stand to lose your claim on any assets you may be entitled to if the marriage fails or if your spouse dies.