Court ruling: Customary marriages

The validity of customary marriages recently came before the Western Cape High Court in the matter of T Diba vs E Miselo and one other. Central to the case were questions around the validity of the marriage itself as well as whether or not involvement of the family is critical to the recognition of customary marriages.

December 7, 2021

The facts of the case

Following the death of her husband, his wife, the first respondent, opposed an application brought by the family of her late husband to declare the customary marriage she had entered into with him invalid/void. She contended that their marriage was entered into according to customary law and was therefore valid and binding with the legal consequences it invited in the administration of her late husband’s estate. The deceased’s family, however, contended that the deceased would not have entered into a marriage without informing them about it and involving them in the formalities.

Section 3(1) of the Recognition of Customary Marriages Act of 1998 and the customs and traditions observed by the AbaThembu were the main sources considered by the Court.

The deceased and the first respondent were married according to customary law. In order for a customary marriage to be valid, the following requirements must be met:

  • Both parties must be 18 years of age.
  • Both parties must consent to be married to each other.
  • The marriage must be negotiated, entered into or celebrated in accordance with customary law.

The deceased’s family was adamant that he would never ignore customs and traditions and go ahead with the marriage. They testified that the first respondent had not attended any family gatherings or events and that her children were not known by the family. They alleged that the claim by the first respondent that she was married to the deceased was opportunistic.

During the case, it was confirmed that the deceased had paid ilobolo of R18,000,00, that AbaThembu custom had been observed, that the deceased had chosen two elders to represent him when he entered into the marriage with the first respondent, and that there had been celebrations. The deceased had, however, for unspecified reasons, chosen not to include his nuclear family.

The court declared that the first respondent was married to the deceased, however the issue of the validity of the marriage was still to be decided.

The court’s decision

The court dismissed the notion that the family of the deceased are a close-knit family as they had failed to see the deceased for 20 years, make contact with him, or involve themselves in his life. It held that the deceased deliberately chose to live his life without his own family and that family as a concept in terms of custom cannot be fixed. It further held that the deceased and first respondent had entered into a customary marriage validly, with all the requirements being adhered to, and that, as a result, the marriage was valid.

Written by Wessel de Kock

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