Customary marriages

Navigating tradition and law: The evolving landscape of customary marriage and the tradition of handing over of the bride.

Is the handing over of the bride still a strict requirement in customary marriages?

It happens that there are disputes about the validity of a customary marriage and the handing over of the bride is often the center of the dispute. For many years, the courts have had to decide whether the handing over of the bride still constitutes as one of the fundamental requirements for a customary marriage to be valid.

What does “handing over of the bride” mean?

According to traditional African customs, one of the requirements for a valid customary marriage is that the bride must be transferred or handed over to the groom and/or his family. There are various rituals and ceremonies that accompany this tradition depending on the specific culture. The purpose of this tradition is to indicate the severance of ties with the bride's family and the incorporation of the bride into the groom's family.

However, customary law can be seen as a living law that adapts to the time and changes within society. The Recognition of Customary Marriages Act (“Customary Marriages Act”) is a result of the changes and was created to formally recognise customary marriages and to set out the requirements of a valid customary marriage.

 Is the handing over of the bride a strict requirement under the Customary Marriages Act?

The main legal requirements for a customary marriage under section 3 of the Customary Marriages Act are:

>     The bride and groom must be at least 18 years old and they must both consent to be married to each other under customary law.

>     The marriage must be lawful and the bride and groom must also be competent to marry each other. This means that they must not be blood relatives, for example, a brother and sister are not allowed to marry each other.

>     The marriage must be negotiated and entered into or celebrated according to customary law. This means that the marriage must be entered into in line with the traditions and customs of the parties.

As can be seen from the above requirements, the Customary Marriages Act does not specifically mention the handing over of the bride as one of the requirements. However, it is generally interpreted to form part of the requirement of dealing with the negotiation, entering into or celebration of the marriage according to customary law. Other traditions that usually form part of this requirement include the following:

>     Negotiation and agreement by the two families of the marriage and of the lobolo.

>     The transfer, either in whole or in part, of the lobolo.

>     Traditional ceremonies and exchange of gifts.

Due to the handing over of the bride not being a strict requirement in the Customary Marriages Act, the courts are regularly faced with disputes in an attempt to establish whether a customary marriage is valid or not.

How do the courts deal with this requirement?

When dealing with this requirement, the courts must consider that the world and culture/customs are constantly evolving, as well as the Constitution recognising and protecting customary law. However, these considerations must be weighed against the basic human rights protected in the Bill of Rights, such as the right to equality and not to be discriminated against.

In Tsambo v Sengadi, the handing over of the bride requirement came into the spotlight as this matter involved a woman not being recognised as the wife of a deceased famous rap artist due to there not being a formal handing over of the bride. There was a celebration where the bride was recognised as the makoti. When this matter came before the High Court, the High Court held that customary law is a developing law that keeps adapting and that the custom of handing over the bride to the groom's family has not been given the space to adapt to modern era changes. It was further held that a customary law wife's dignity is being infringed with the handing over custom as she effectively does not have the “freedom of opinion, autonomy or control over her marital life if her customary husband's family insists that her family should hand her over in order to validate the existence of her customary marriage”.

This matter then went to the Supreme Court of Appeal where it was held that it was not necessary for the High Court to delve into the constitutionality of the handing over of the bride requirement and whether it infringes on a woman's dignity. The Supreme Court of Appeal held that although the handing over of the bride custom remains a factor that must be considered to establish the validity of a customary marriage, the fact that there was no formal handing over of the bride in this matter does not make the customary marriage invalid.  Both these courts found that a customary marriage can still come into effect where the marriage was concluded in compliance with section 3 of the Customary Marriages Act.

Although the High Court's arguments on the infringement of the right to dignity were not followed in the Supreme Court of Appeal, this matter highlights the fact that the courts are considering the impact the handing over of the bride requirement can have on women.

In the more recent matter of Kunene v Bangaza, the High Court also had to look at the handing over of the bride (or the lack thereof) to establish the validity of a customary marriage. In this matter, despite there never being a formal handing over of the bride, the bride and groom lived together as a married couple for years, both families were aware of the situation and they both agreed and consented that they were married under customary law. Although there was no formal handing over, the High Court held that a customary marriage came into effect due to both families being aware and that both parties consented to being married (bringing it back to the strict requirements under the Customary Marriages  Act).

The High Court specifically held that:

“The day has come for an acceptance that a mere symbolic or constructive delivery of the bride is sufficient for confirming that a customary marriage was concluded. For as long as the bride's family is aware that their daughter has married in terms of customary law and raised no objections, there should be no demand for further compliance with rituals such as handing over.”

What impact does this have on women?

Although there are different takes on the handing over of the bride as a requirement for a customary marriage, the fact remains that if there is a dispute about it, it can prevent a woman to benefit from a marriage that is now being argued never existed. This means, for example, that if the marriage is not valid, she might not benefit as a surviving spouse at the death of her husband in respect of maintenance and inheritance.

With customary law being an evolving law and there being various interpretations on whether the handing over of the bride is a must for each culture, women should start to adopt a style of finding out what the groom's culture requires for a customary marriage to be valid in their eyes. This can help to understand what traditions must be followed to avoid future disputes on whether there was a valid customary marriage or not.

However, it is clear from the case law that the courts might be moving towards a stricter application of the requirements specifically set out in the Customary Marriages Act. However, the courts continue to consider the customs and traditions, as well as acknowledge alternative forms of handing over of the bride. This means that if both parties have agreed to enter into a customary marriage, lobolo was paid and any form of celebrations took place, then it can be argued that a customary marriage came into existence (however, each matter will be addressed on the specific facts and circumstances and not every matter can be dealt with in the same way).