An Appraisal of the Requirements for the Validity of a Customary Marriage in South Africa, Before and After the Recognition of Customary Marriages Act 120 of 1998

Abstract

his article appraises the requirements for the validity of a customary marriage. It peruses two eras separated by a statute called the Recognition of Customary Marriages Act 1 of 1998 RCMA. rior to delving into what the requirements for validity before the RCMA were, the article differentiates between peremptory and directory provisions. hese terms are usually applied in interpreting statutes. hey also find application in determining the requirements of the validity of customary law. he era before the RCMA lists essential requirements for a valid customary marriage. he gist of these requirements is as follows: consent of the bride and bridegroom spouses, consent of the bride’s father or guardian (parents), payment of lobolo, the handing over of the bride and the absence of a civil marriage by either spouse. If any of these requirements were not met, there was no valid customary union. he RCMA added more requirements which seem to address formal and customary law requirements. Both prospective spouses need to be 18 years or older, with certain exceptions, and must consent to getting married in terms of customary law. hese requirements are peremptory. he customary law requirements relate to the negotiation and celebration of such a marriage. hese requirements remain essential. nlike formal requirements, these requirements allow indigenous frican people a certain latitude. s a result, they are directory. his article further deliberates on certain issues regarding the requirements of customary marriages that became contentious. his includes the delivery of lobolo, the handing over of the bride, polygamous and dual marriages, and the registration of customary marriages. In conclusion, it is shown that customary law is a rapidly growing independent source of law. he requirements for validity must be comprehended with this flexibility in mind and should not unnecessarily be held as being static.