legal issues pertaining to lobola - Lobola: Tradition or binding South-African Law? Important legal issues to consider before entering into Lobola negotiations. A customary marriage is deemed to be in community of property unless an antenuptial agreement is entered into before the marriage. According to the Matrimonial Property Act, parties who wish to get married out of community of property must enter into an antenuptial contract prior to the civil marriage ceremony being concluded.

Lobola: Tradition or binding South-African Law? Important legal issues to consider before entering into Lobola negotiations. A customary marriage is deemed to be in community of property unless an antenuptial agreement is entered into before the marriage. According to the Matrimonial Property Act, parties who wish to get married out of community of property must enter into an antenuptial contract prior to the civil marriage ceremony being concluded.

Lobola itself is not marriage, but rather a part of the process of getting married under customary law. This law clearly stipulates that in order for the customary marriage to be legally recognised, it has to be entered into by a man and woman over the age of 18 years who have the intention of getting married under customary law.

It is very important to celebrate the customary marriage after lobola negotiations have been concluded. “By merely paying or receiving lobola in full without the requisite celebration, the marriage is not concluded in accordance with customary law, and therefore considered invalid.

The way in which a customary marriage is celebrated after the conclusion of the lobola negotiations differs from culture to culture. Most cultures welcome or incorporate the bride (makoti) into the new family through song and dance, slaughter a sheep and exchange gifts, blankets and knives.

The problem is that the only proof you may have that some form of union existed is the lobola letter, and this alone may not be sufficient to prove that a customary marriage existed.

If you don’t register the customary marriage with Home Affairs, it does not necessarily mean it is invalid, but it makes it harder to prove. “If your marriage is not registered, you will have to approach the High Court to apply for a declaratory order to legally confirm that you were indeed married under customary law.

The judge will then have to exercise his/her discretion in deciding whether you and your spouse can be declared as married. In such cases, the courts may also be guided by custom experts who understand the laws of different cultures. The courts may also need affidavits from family members stating what actually happened. Additional evidence, such as photos of the celebration, could also be helpful.”

A customary law marriage amounts to an in-community of property marriage, in which the couple jointly own the assets and liabilities of the joint estate. A legally recognised marriage therefore protects your rights if the marriage ends.

A customary marriage entered into after the commencement of this Act in which a spouse is not a partner in any other existing customary marriage, is a marriage in community of property and profit and loss between the spouses, unless such consequences are specifically excluded by the spouse in a n antenuptial contract which regulates the matrimonial property system of their marriage” – (Section 7(2) of the above mentioned act).