Married or not – court had to decide

A wife and her estranged husband are at loggerheads as to whether they were indeed married.

A wife and her estranged husband are at loggerheads as to whether they were indeed married.

Published Jun 19, 2024


A wife and her estranged husband are at loggerheads as to whether they were indeed married.

The wife maintaining that they were married in terms of the Recognition of Customary Marriages Act, while the husband argued that no “holy matrimony” service followed the customary marriage, thus, according to him, there was never a valid marriage.

The plaintiff (the wife) told the high court sitting in Bloemfontein that she and the defendant (husband) were married to each other in community of property during a traditional wedding ceremony which took place in 2014.

She said that the lobola negotiated – R15 000 – was paid on the same date as the traditional marriage.

The husband’s family welcomed her into their family, but the condition set by the wife’s family was that the couple would only properly be wedded after they have a “holy matrimony”.

The wife’s family, before the traditional wedding took place, said they took full responsibility to arrange the church service and they would thereafter revert with a date and the necessary preparation.

The church wedding, however, never took place.

The husband said due to the church wedding never taking place, he never married the plaintiff.

According to him, the family representatives negotiated lobola in respect of the plaintiff. These negotiations were then reduced to writing. The husband further argued that his then bride-to-be’s family made it clear they would only recognise the union after a church wedding, which did not happen.

He said the agreement was that until such time that they have entered into holy matrimony, they are not married to each other.

The court earlier declared that the customary marriage entered into between the parties was valid and of effect in terms of the Recognition of Customary Marriages Act.

Unhappy with this, the husband now wanted to appeal that ruling. He maintained that the trial court had erred in not finding that in the absence of the “holy matrimony” agreed upon and recorded in the lobola agreement, no valid customary marriage came into existence.

It was argued on behalf of the husband that the court’s earlier finding that holy matrimony is not an essential element for a customary marriage “induces a sense of shock”.

According to the husband’s lawyer, this finding went against the unchallenged evidence presented on behalf of the wife’s family that holy matrimony is part of their custom and culture.

In deciding on appeal whether the parties were indeed married or not, the court pointed out that they were both over the age of 18 and intended to get married to each other in terms of customary law.

This is clear from the fact that lobola negotiations had taken place and the negotiations were reduced to writing and signed by the respective family members on behalf of the couple. The final lobola payment was also made on the same date.

After the lobola negotiations and conclusion of the lobola agreement, two children had been conceived by the parties.

Following evidence in this regard, the court accepted that there was a celebration at the bride’s family home, she was presented to the husband’s family by her aunt and family members gave speeches. Lunch was served and there was singing and ululation during the celebrations.

The wife was allowed to move in with the husband and she regarded herself as his wife.

The court commented that customary law is a dynamic, flexible system, which continuously evolves within the context of its values and norms, consistently with the Constitution, so as to meet the challenging needs of the people who live by its norms.

The system, therefore, requires its content to be determined with reference to both the history and the present practice of the community concerned. The court said that although the various African cultures generally observed the same customs and rituals, it is not unusual to find variations in their local practice because of the pluralistic nature of African society.

Although the family of the wife expressed the “condition” that the parties will only be espoused with holy matrimony, it does not mean that they were not legally married in terms of customary law.

The “condition” of holy matrimony can merely be regarded as an expression but not a requirement of the consummation of the couple and it does not override the law, the court said.

In turning down the appeal, the court once again confirmed that the couple were married in terms of customary law.

Pretoria News

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