Family Law

Type Unit 4

Chapter 5

First part of substantive customary law. Start with family law with the focus on
marriage. Because persons living in accordance with the customary law and
traditions have a choice between entering into common law marriages or customary
marriages, both these forms of marriage will be studied.

 Answer these Questions before exam

Critically comment on the former non-recognition of customary marriages

Compare the present validity requirements (Act 120 of 1998) with “traditional”
validity requirements\

Know when Act 120 of 1998 commenced and its implications

Determine whether a valid customary marriage was concluded in specific

circumstances

Compare a customary marriage which was concluded before the

commencement of the Act with a customary marriage concluded after

Family Law 1
 commencement

Discuss the present-day status of marriage partners critically

Explain how marriages are to be terminated under the Act and to compare this
termination to the ”traditional” termination of customary marriages

Discuss the consequences of termination of marriages

Define polygyny and discuss how the Act regulates it

Set out the present-day patrimonial consequences of marriages and to compare

compare it with “traditional” patrimonial systems

Compare the recognised customary marriage to a common law marriage.

Common Law (Civil) Marriage:

Set out the different stages of legal development relating to common law
marriages

Compare the legal position before 1988 with the legal position thereafter

Compare common law marriages entered into by black persons to those entered
into by white persons – before 2000

To know what the current legal position regarding common law marriages
entered into by black persons is.

Family Law 2
 ª Cases

Mabuza v Mbatha 2003 (4) SA 218 (CPD)

Facts: existence of a valid customary marriage was in dispute
because of the wife’s alleged non-integration into her husband’s family
according to the ukumekeza (Swazi) custom
Decision: The court found that the parties could agree to waive the
ukumekeza requirement and that performance of these specific rituals
is not an essential requirement.

The decision was criticised in that the real issue, namely whether the
wife had in fact been integrated into her husband’s family, had been
overlooked. The integration of the wife into the husband’s family runs
like a golden thread through all customary marriages.

Gumede v The President of the RSA 2009 (3) SA 152 (CC)

(SUNLearn)
Facts: Elizabeth Gumede entered into a customary marriage in 1968
in KZN, which was the only marriage to which the applicant’s husband
was party. The marriage has since broken down irretrievably, and in
January 2003 her husband instituted divorce proceedings. Mrs
Gumede did not work during the marriage, but maintained the family
household as well as the four children. The family acquired two pieces
of immovable property during the course of the marriage with the
furniture and appliances in both amounting to approximately R40 000
each. Ranking was applicable, Mr Gumede was family head to
exclusion of Mrs Gumede. Mrs Gumede says that if this marriage was
concluded after act came onto commencement, this marriage would
have been in community of property. This would leave her with
absolutely nothing, because of zulu codes. S7(1) discriminates based
on race and gender,\.
Decision: Court agreed. Chief Justice Motsonegki. Recognition Act’s
purpose was to ensure equality. S 7(1) and (2) perpetuated inequality.
S7(1) was declared unconstitutional as far as it relates to
monogamous customary marriages. All monogamous customary
marriages entered into before the Act came into operation are, as from

Family Law 3
 8 December 2008 (the date of the judgment), ipso facto in community
of property and of profit and loss between the spouses.152 It has no
bearing on customary marriages which had been terminated by death
or by divorce before the date of the judgment. Section 7(2) was also
declared unconstitutional insofar as it distinguishes between a
customary marriage entered into before and after the commencement
of the Act. The court in Gumede took note of the fact that the
judgment perpetuates the existing inequality between women in
monogamous marriages and those in polygynous marriages but
declared that “the proprietary consequences of polygamous
relationships will be regulated by customary law until parliament
intervenes.”
Gumede only applicable to mongamous marriages that concluded
before act in commencement 2008.
Criticism: court say polygynous marriages can be left to legislature, we
all know legislature is super quick and efficient in SA

Ramuhovhi and others v The President of the RSA and others

(Trustees of the Women’s Legal Centre Trust as amicus curiae
Facts: S7(1) of RoCMA: the proprietary consequences of customary
marriages entered into before the commencement of the RoCMA
continue to be governed by customary law.—> In Gumede (born
Shange) v President of the Republic of South Africa, the Constitutional
Court declared the section invalid insofar as it relates to de facto
monogamous customary marriages—> but left open whether section
7(1) was constitutionally valid insofar as it applies to polygamous
customary marriages
Venda law in question does not award property rights to wives. Similar
to Gumede case, but this case involves a polygamous marriage.
Husband married to 3 Netshituka women in CM, and 2 in civil
marriage. He died and left a will. Applicants are biological children of
Mr Netshituka – who entered into 3 customary marriages. Marriage to
Martha was declared null and void as he already had customary
marriages. Then customary marriage was in community of property
and the wife named executrix of his will.

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 Will says three wives and children get his “shared part” of estate –
reference to being married to fourth respondent (Munyadziwa Joyce
Netshituka) in community of property. Major asset –immovable
property shopping centre built on. Applicant’s called to declare fourth
respondent’s half-share of this immovable property invalid. First son
left house –apparently left by uncle to father. Issue similar to Gumede
issue – disparity between definitions of ‘new’ and ‘old’ polygamous
customary marriages. If husband does not specify otherwise
contractually, then married out of community of property and of profit
and loss. Displays discrimination due to gender and also on the
ground of marital status (differentiate between older or more recent
wives). Death or dissolution does not affect the property rights of her
house and its inhabitants i ncustomary law. Trustees of the Women’s
Legal Centre Trust acted as Amicus Curiae

Decision: found that section 7(1) of the Recognition of Customary

Marriages Act is inconsistent with the Constitution with respect to
polygamous customary marriages as well. It found that the
provision is discriminatory also on the basis of race and/or ethnic or
social origin insofar as women in “old” polygamous customary
marriages are excluded from the protection afforded to women in
monogamous marriages.
Main take away: court decided that 7(2) did discriminate against
polygynous marriages. Furthermore, declared that

Wives and husbands will have joint and equal ownership and
other rights to, and joint and equal rights of management and
control over, marital property (i) in respect of house property,
by the husband and the wife of the house concerned, jointly
and in the best interests of the family unit constituted by the
house concerned; and (ii) in respect of all family property, by
the husband and all the wives, jointly and in the best interests of
the whole family constituted by the various houses. Each spouse
retains exclusive rights to her or his personal property

everyone has equal rights and control of property. whether that

works in practice is another matter.

Recognition of Customary Amendment Act.

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 Sengadi v Tsambo:In re Jabulani Tsambo Case NO: 40344/2018
Facts: Issue is whether a customary law marriage came into
existence. Deceased proposed to respondent, she wanted to get
married in terms of CL. They had lobolo negotiations, an d contract
signed. The deceased also planned a cm on the same day, and video
recording showed them getting married. Later had matrimonial
troubles, deceased committed suicide. Respondent launched
application to prove CM, as appelant did not think she was true wife.
And whether a handing over of the bride ensued in satisfaction of the
requirement that the marriage be negotiated and entered into or
celebrated in accordance with customary law.
Decision: Court a quo and HC decided there was a valid CM which did
take place between respondent and deceased, even though all the
marriage rituals, including the handing over of the bride never took
place. Court held that handing over of the bride not the most important
part of customs.
Main take away:

Kambule v The Masters and Others 2007 (3) SA 403 (E) (SUNLearn)

Facts: First married customary rites in 1956 in accordance Black

Administration Act – out ofcommunity of property. Applicant claims
married customary law in 1985. Applicantlived in Burton’s house and
executor of estate upon death. Second respondentwanted to claim
rent and to declare customary marriage void ab initio. HC -registration
ito Transkei Marriage Act was not a requirement for validity.
Overturnedby appeal to SCA – applicant must vacate house. SCA did
not deal with customarymarriage – said no right to accrue the house

Decision: Held – registration not requirement for validity. Marriage

validated by RCMA. Burtonentitled to conduct customary marriage
with applicant. Act not retrospective whenenter into customary
marriage while civil one exists. Held – surviving spouse in termsof the
act. Application ruled in favour of applicant

Mayelane v Ngwenyama (Women’s Legal Centre Trust as amicus

curiae) 2013(4) SA 415 (KH); 2013 (8) BCLR 918 (CC): SUNLearn

Facts: Tsonga customary law – does not require consent of woman for
marriage. Applicant married the deceased in 1984 in terms of Tsonga

Family Law 6
 customary law. HC – rule her marriage valid and not one of wife she
did not know about – granted. SCA held hermarriage valid but said
first respondent’s marriage also valid. Applicant then approached
Constitutional Court to declare marriage invalid. Tsonga law – first wife
must know of and help with other marriage, if unknown then that
marriage is invalid –children of that union still legitimate though
Decision: in light of the prejudice to the second wife, the Supreme
Court of Appeal found that section 7(6) of the Act is not a validity
requirement for a further customary marriage in Tsonga law, and found
the second marriage to be a valid customary marriage. The matter
went to the Constitutional Court and although the SCA judgment
regarding section 7(6) not being a validity requirement for a further
customary marriage was confirmed, the second marriage was found to
be invalid, based on the fact that the first wife was not informed about
the second marriage.

Main takeaway: wives must consent to further marriages concluded by

their husbands

Netshituka v Netshituka and Others 2011 (5) SA 453 (SCA)

(SUNLearn)

Facts: husband already partner in cm’s. Then concluded civil

marriage. At that time in law, a subsequent civil marriage would
dissolve cm’s. In this case, the husband continued to fraternise w
other wifes.

Decision: the court concluded that civil marriage was invalid because
he did not ask their consent.

Sithole and Another v Sithole 2021 (5) SA 34 (CC)

Facts: The grounds of discrimination complained about in this case

are that of race and age in terms of the matrimonial regime the a
customary law was automatically entered into
Decision: Section 21(2)(a) of the matrimonial property act excludes
black married couples the liberty that it bestowed on other married
couples that belong to other races, by not having the effect of
automatically converting the default position of marriages of Black
people so that they were automatically in community of property like
those of other races . This is discrimination on the ground of race.

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 Section 21(2)(a) further discriminates on black couples married before
1984 on the grounds of age, it does this by not providing the liberty to
couples married before 1984 the liberty it provides to couples married
after 1984. It makes questions such as, “are older people and younger
people not the same in the eyes of the law?” arise. C-section 21(2) of
the Matrimonial Property Act of 1984 is unconstitutional and invalid as
it goes against section 9 of the constitution

Table of contents
1 Introduction
{2 Betrothal
€3 Customary Marriages
4 Adoption Practices
[5 Civil Marriages and Civil Unions
1 Introduction
Family relationships are of fundamental importance in CL.

Ä Traditional customary family law was drastically amended by the

Recognition of Customary Marriages act (RoCMA)

Ä Recognition of Customary Marriage Act 120 of 1998 only came into

operation: 15 November 2000

Before this time South African Law didn’t recognize customary marriages as
legally valid, the marriages were not even called marriages they were
referred to customary unions.

Customary Marriages not recognised because:

Conflict with boni mores: due to polygynous nature and group-orientation:

Agreement between families of bride and groom.

Not Solemnised in accordance with Marriage Act 25 of 1961

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 {2 Betrothal
Customary marriage didn’t comply with the strict requirements of this act.

Features of customary marriages:

Often polgynous in nature - where one husband is allowed to take more than
one wife

Group-orientated : Agreement between family of bride and groom- especially

in traditional customary law.

Sense of importance of communal importance

1 Marriage Negotiations
Engagement=agreement between 2 fams, not just indivs.

Usually initiated by mans family, who approaches the woman's with the
request. However, today moving to more individualised approach.

If it is the man’s 1st wife, negotiations can be by his father/ himself. Woman’s
father can also initiate. Negotiations are conducted w woman's
father/guardian.

Negotiated until agreement about lobolo amount etc, and they reach
consensus. The forms the basis of the formal agreement.

Ukukthwala= Xhosa custom woman abducted & family forced to start

negotiations. Should be done w woman's consent but she is supposed to
feign resistance. Taken 2 man's parental home where she is to be received w
utmost kindness.

2 Consequences of Betrothal
No enforceable personal rights created by negotiation, can terminate and no
claim 4 breach of promise. depends on whether patrimonial prop has already
transferred/ no.

Betrothal gifts: right of ownership passes upon delivery 2 woman/ father.

Betrothal terminated—> Blameworthiness determine who gets the gifts
back. If man= blamed? Woman keeps. Woman= blamed? Man takes
back. Due to mutual agreement? they can talk about it, done in bona fide.

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 Lobolo given during betrothal: usually a part is given before the marriage,
or everything. Ownership of lobolo + accrual remains vested in giver until
marriage concluded. Giver bears risk of loss/death, but recipient obliged
to report such occurences. If marriage is terminated? Everything+
accrual returned.

KZN Sisa cattle: acc to S58(1) of KZN codes accrual part of lobolo

The KwaZulu Act on the Code of Zulu Law 16 of 1985 and the Natal Code of
Zulu Law

3 Ways of terminating the engagement

The engagement can be terminated by either or both of the parties

Mutual Agreement between families? The woman also has to consent

Terminated Unilaterally: any party can terminate w or w/o good reason.

Reasons 4 man to terminate: woman displayed indecent behaviour, there

was unreasonable postponement, especially if more lobolo demanded

Reasons 4 woman: refusal 2 deliver lobolo from man, neglect of woman/

behaviours signifying he’ll be an unfit husband, if man enters into CM w
another woman

Death of man/ woman: marriage not necessarily terminated, sometimes

substituted

4 Engagement of Children
A) practice of Tswana & Pedi

Kids are engaged from birth or before they are born

€3 Customary Marriages
Complete taboo

1 Recognition of CM
A Customary Marriage= marriage concluded in terms of customary law.

Family Law 10
 Ä The Recognition of Customary Marriages Act came into operation
on 15 November 2000 and brought to an end the uncertainties and
the doubtful nature of the recognition of a customary marriage.

Not necessarily only POC who can enter, anyone who declares the
traditional communities rules which they will be following, and trad leader/
delegate will do the same to show acceptance.

The act provides for monogamous and polygamous customary marriages

that were concluded before and after the commencement of the act,
which has led to some inconsistencies and confusion, and is the reason
for many of the prescribed cases

Ä S 3(1)(b) of Recognition of the Customary Marriage Act requires

that the marriage must be negotiated and entered into/ celebrated
in accordance with customary law

CM before 15 November 2000

Requirements:
Validity determined by measuring it against the CL that was in force @
time of concluding the marriage. Zulu law= partly codified, different than
rest of country.

KZN rules:

consent of father of wife (especially where minor) may not be

witheld w/o good reason

consent father/ guardian of husband

public declaration of prospect wifey 2 official witnesses that she

voluntarily enters with her consent

does not expressly require delivery of lobolo, generally accepted

that it should be delivered

The rules outside KZN:

Family Law 11
 the consent of the father or guardian of the man under certain
circumstances

consent not really required anymore, except if he helps w

lobolo

The consent of the father or guardian of the woman

Was non-negotiable regardless of age because perpetual

minor. Tacit consent, eg allowing them to live 2gether
accepted

ª Mabena v Letsoalo, now mother allowed to negotiate for

lobolo too. The unofficial cl is the living law

the consent of the prospective husband. Express/ tacit is fine

the consent of the prospective wife (only nowadays)

the handing over of the woman to the family group of the man or
to the man himself (as the case may be)

wifey was 2 b integrated into fam. non-integration usually

related 2 things like failure 2 deliver lobolo

ªrefer to Mabuza v Mabatha

an agreement that lobolo will be delivered (main component of
CM)

that there should be no existing civil marriage.

A person married according to civil customs cannot enter into

a customary marriage. Until 1988, parties to a customary
marriage could freely conclude a civil marriage between
themselves or with some other person. The civil marriage
simply dissolved the preceding customary marriage

Registration of CM before RoCMA

A customary marriage entered into before the commencement of the act
had to be registered at the department of home affairs before 15
November 2002. This date was changed quite often, the final date to
conclude a marriage before the commencement of the act was before 31
Dec 2010 with the Dept. of Home Affairs

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 Although the act provides for registration, it’s not a requirement for a
valid customary marriage

Registration serves as prima facia proof

The spouses of a customary marriage are under a duty to ensure the

marriage is registered

The act provides that if a customary marriage isn’t registered and a

person who has a sufficient interest in the matter may apply to the
registration official to determine the existence of the marriage.

Registration certificate: prima facie proof of the existence of the

customary marriage and of the particulars contained in the marriage
certificate

The role of the registration officer is that he must investigate the

validity or invalidity of a customary marriage.

Any person with sufficient interest – request reg.officer to investigate

the existence of Customary marriage

If Reg. officer satisfy that a valid CM exists, h/s must register the
marriage and issue a marriage certificate

Provision relevant for children whose parents never registered the CM

Equal status and competencies of spouses

In the past, the wife in a customary marriage was subjected to the marital
power of the husband and was regarded as a perpetual minor.

Proprietary Consequences
Marriages concluded before the commencement of the act:

Ä Section 7(1) of the RoCMA provides that the patrimonial

consequence of customary marriages concluded before the
commencement of the act will remain unchanged and are still
governed by customary law

Traditionally the position is as follows:

The husband has to establish separate houses with their speaker

house property

Family Law 13
 He is the family head of all the houses regardless of which form of
ranking system applies to the particular family group.

He is in control of all house property and family property of his

household

The family head must administer family property to the collective

advantage of the
family

Duty of family head to keep the estates of the various houses

separate and to settle
disputes relating thereto

look at next section for ranking systems

General family property

Any property a member of a household acquires becomes the
property of that house. Property which has not been allotted to a
specific house, or which does not accrue automatically to a house.

Property controlled by Family Head , although he is not the owner of it.

Eg. Includes property that Family Head inherits from his mother;
property Family Head acquires through own labour and effort; land
allocated by traditional authority.

House property
Property accruing to a specific house: consisting of a wife and her
children - has to be used for the benefit of that house

Allotted by Family Head to house; with retention of control

Includes: earnings of the members of the house; livestock + increase

allocated to a specific house; property given to a wife at her marriage;
lobolo received for daughters of the members of the house, damages
received for delicts.

3 Requirements of CM after 15 November 2000

In order to be recognised, monogamous and polygynous customary
marriages concluded after the commencement of the Act must comply with
the requirements of the Act

General

Family Law 14
 Parties 18+

both must have consented 2 cm

marriage must be negotiated, entered into, and celebrated in

accordance w cl

spouses precluded from entering into civil marriage if married in cl, but
can convert cm to civil marriage w each other, so long there are not
other marriages going on

if spouse= minor, both parents must consent. Age of majority = 18

according to const.

if parents won’t consent, Commissioner of Child Welfare can give

consent if in best interests of minor

no parental/ commissioner consent→ marriage = voidable, if request

by parent, gaurdin or minor self. Have to annual before minor turns 18.

Prohibitions relating to blood affinity relations

The Recognition of Customary Marriages Act does not alter the prohibition
of a customary
marriage between persons on account of their relationship by blood or
affinity. This is still
determined by customary law

Nguni group: Thembu, Xhosa, Bomvana, Pondo and Bhaca in the

Transkei, sexual intercourse w woman in the same clan as the man,
irrespective of how distant their relationship may be, and even if there
is no relationship, = incest.

Among the Zulu, marriage with blood relations of any kind is strictly
prohibited. Can marry within the same clan or the clan of his mother’s
people.

On the other hand, the Swazi consider certain marriages between

relatives desirable, especially between a man and a woman belonging
to the clan of his paternal grandmother or maternal grandparent of
either sex

The Sotho group: Among the Sotho and the Tswana, a man may not
marry an ascendant or descendant. Crosscousin marriages, that is,
marriages between a man and a daughter of his mother’s brothers, or

Family Law 15
 his father’s sisters, are preferred. Marriages between other cousins
are allowed.

The Tsonga group Among the Tsonga, a man may not marry the
daughter of a paternal or maternal uncle or aunt.

The Venda group: also have a preferred form of marriage. It is

desirable for a man to marry a woman from his maternal uncle’s family

Negotiations, conclusion, and celebration acc to CL

Three distinct stages of cm

1. “involves visits, pourparlers and the exchange of social courtesies, all

designed to establish concord between the groups, culminating in the
consent of the groups to the marriage”

2. the extent of the lobolo is arranged. This is the most important legal
aspect of the marriage and is the contract proper

3. Involves the bride in person and not the groups as contracting parties.
She must formally leave her ancestral family home. Even death does
not dissolve the marriage

Lobolo
According to RoCMA lobolo= property/ cash of any kind which
prospective husband/ head of fam undertakes 2 give head of prospect
wifes fam ito cm.

Man’s 1st marriage, father helps w negotiations and payment.

If the husband if both a major & economically self sufficient, can do

himself.

lobolo used to consist of cattle, now can be anything often cash or

prop

function of lobolo:

1. legalise the marriage

2. legitimate the children born of the woman,

3. act as a form of compensation in a general sense,

4. place the responsibility upon her father to support her if it should

become necessary,

Family Law 16
 5. stabilise the marriage, and

6. 6 ensure proper treatment of the wife by the husband and his

family. It is clear, however, that the primary function of the lobolo

7. 7 is to transfer the reproductive capacity of the woman

to the family of her husband; in other words, there is a direct
correlation between (a) the transfer of lobolo, and (b) the
reproductive potential of the woman

Lobolo not expressly required by RoCMA!

The size of lobolo can be determined by:

Custom

Through negotiation procedures and agreement between parties

Unilaterally by the man’s family

among Xhosa – not agreed on beforehand, but depends on

circumstances. These tribes follow the custom of Theleka – wife’s
father allowed to, occasionally, impound wife and children to
receive lobolo for their return

Registration of CM
since the commencement of RoCMA:, has to be registered within
three months after such conclusion or within such longer period as
determined by the Minister from time to time in the Gazette.

Any spouse may apply by completing the prescribed form and

supplying necessary info

However registration is not necessary 4 valid cm

If not registered, any person who has sufficient interest in the matter
may apply to the registration official to determine the existence of the
marriage

spouses whose marriage is not registered & their children might not be
able to have full enjoyment of their rights eg pension benefits.

only 1 party has to apply 4 proof can lead to fraudulent registration

Equal status and competencies of spouses

Family Law 17
 Ä - S6 of RoCMA: wife n the basis of equality with her husband
and subject to the matrimonial property system governing the
marriage, full status and capacity, including the capacity to
acquire assets and to dispose of them, to enter into contracts
and to litigate, in addition to any powers that she might have at
customary law.

Also: S9 of Const

ª Refer to:

Gumede v President of RSA

Ramuhovhi

Proprietary Consequences S7 of RoCMA

Polygynous Customary Marriage

The husband has to establish separate houses with their separate

house property. He is the family head of all the houses regardless
of which form of ranking system applies to the particular family
group. He is also in control of all house property and family
property of his household. House property is primarily used for the
benefit of the house to which it belongs. The family head must
administer family property to the collective advantage of the family.
The family head has a duty to keep the estates of the various
houses in his family home separate and to
settle disputes relating thereto

ª Refer to:

Gumede v President of RSA

Ramuhovhi

Family Law 18
 Ä Section 6 of RoCMA, which purports to provide equality,
is in effect useless when the patrimonial consequences of
the marriage are subject to customary law

Marriages concluded after the commencement of the Act

1) A monogamous customary marriage:

If its a cm and the spouse is not party to any other cm, the
marriage is in community of property and of profit and loss
between the spouses

therefore same for civil unions and cms

2) A polygynous customary marriage

If the man wishes to conclude anther cm, he must have

written contract 2 show how he will regulate future matrimonial
property

If tha marriage is in community of property, or out of

community of property but with accrual, the court must ensure
a fair division of matrimonial prop, taking into account all the
relevant circumstances of the family groups who will be
affected.

all persons affected must be present in court

ª Refer to Mayelane v Ngwenyama

Dissolution of CM through divorce

Ä Divorce: S8(1) of RoCMA + Divorce Act

1. Grounds:

Family Law 19
 a. only grounds for divorce is the irretrievable breakdown of thr
relationship. Court will grant order only if there is no chance 2
save it.

Olivier et al mentions the following “grounds” on behalf of the

husband which leads to irretrievable breakdown:

Adultery by the wife – not a single act but persistent

transgressions.

A single act of incest is sufficient.

If the wife falls pregnant and refuses to divulge the name of

the party responsible and makes it impossible for her husband
to claim damages;

premarital pregnancy not caused by the husband and of which

he had no knowledge at the conclusion of the marriage;

absconding by the wife under certain circumstances and her

subsequent refusal to return to him when requested to do so
by him (when he phuthumas her) and any behaviour on the
part of the wife that amounts to the clear and

unequivocal repudiation of the marriage.

On behalf of the wife, the following are examples of good reasons

for divorce in customary law:

serious assault and physical ill-treatment by the husband;

when the husband accuses the wife of witchcraft;

when the husband drives his wife away and his subsequent
failure to fetch (phuthuma) her;

when the husband abandons his wife for a long time and

when the husband is impotent and the wife was ignorant of

the impotence before the marriage. These reasons are not a
numerus clausus

2. Jurisdiction: onlythe High Court, Family Court, Divorce court can

dissolve a CM. If the parties made an arrangement according to cust
law, that arrangement will be applied and if the court believes that it is
a reasonable arrangement; without prejudice to parties it can be
regarded to be part of the divorce order.

Family Law 20
 3. Consequences of divorce:

a. interests of children:

i. The Mediation in Certain Divorce Matters Act and section 6 of

the Divorce Act are applicable.

ii. deal w things like position of children, custody, gaurdianship,

access, maintenance

iii. used to be that children belonged to the fathers family, but

now courts will decide what is in the best interest of the child.
take African cultural values into account still.

b. Patrimonial Consequences:

i. sections 7, 8, 9 and 10 of the Divorce Act and section 24(1) of

the Matrimonial Property Act.

ii. concerns distribution of assets and benefits of the marriage

iii. if husband has more than one spouse must consider and
make equitable order.

c. Return of Lobolo

i. in traditional law the dissolution of marriage did not have an

effect on lobolo. According to Olivier et al, most important
factors:

1. number of children born into marriage

2. amount of lobolo already paid (as well as what is still

outstanding)

3. which party primarily responsible for breakdown of

marriage. only man? forfeit lobolo. both? reach settlement
attempt. woman? lobolo returned.if not returned, marriage
not completely regarded as dissolved. not like this in all
cultures. not matrimonial property as it is between fathers
of spouses

4. both try to reach a settlement

Maintenance
Trad CL: Woman returned to father. Holding lobolo, maintains her..
Dissolution severs all ties.

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 Ä RoCMA + Divorce Act provisions empower the court to grant a
maintenance order against a spouse for the benefit of the other
spouse. Right to claim maintenance from the other spouse is a
radical change to customary law and many of the problems
encountered in the maintenance court can be ascribed to it

1. Joinder
anyone who has a sufficient interest in the matter can join in the
divorce proceedings. This probably includes the husband’s other
wives as well as the woman’s father as lobolo holder

2. Dissolution of CM by death and surrogate practices

a. According to Customary Law, Customary Marriages are not

dissolved by the death of 1 party.

b. Death of wife: does not destroy house she established. seed-

raiser come into her position, normally a close relative. must
produce more children for late wife’s household. Known as
seantlo, practiced mainly if deceased (or infertile) wife did not
produce a son. No additional lobolo.

c. Death of man: replaced by male relative from fathers side. known

as levirate. Children born of this deemed children of the deceased.
Levirate used to produce a successor for the deceased.

Evaluation
which social values underpin? social solidarity

differences between civil and cm?

does lobolo enhance the dignity of the wife or discriminate?

why polygyny becoming obsolete today? must divide wealth equally—

in these economic circumstances!

4 Adoption Practices
different forms exist today, include a relative or friend adopting a child. natural
father adopt child into his family.

Family Law 22
 [5 Civil Marriages and Civil Unions
We didn’t do this section in class :)

Civil Union Act

Civil Marriages Customary Marriages

- Concluded between two

- Concluded between two families - 1 man, multiple
individuals - 1 man, 1 woman -
women (Monogamous or polgamous) - State absent in
State plays roles in the
the conclusion - Possibility for an Informal divorce.
conclusion of the marriage -
Since the promulgation of the act it is more of a formal
Formal divorce process and the
process. - Usually lobolo - Does not necessarily end
state involved - No lobolo - Ends
on death - Single and complex rank in wife’s status.
upon death of either parties - 3
Gumede & Rumuhovhi - Invalid for a long time – seen
Matrimonial property system. -
as in conflict
Valid

Class notes on the ranking system:

Simple Ranking System:

There is only one family group, and the ranking of the group is
determined by the date married. The earlier the marriage, the more
authority the wife has.

Complex ranking: two ways to organise:

1. The first way: once against, the date of marriage determines the rank
and importance of the wife. First wife= chief wife: house of main wife
= chief house. Other wives rank ACC to date of their marriage. As far
as I understand, the differentiating thing is that there is still more than
1 house.

2. The second way: houses are divided into 2 groups. The 1st wife is
the boss of one, second wife boss of other. Third wife goes to the
first house, fourth goes to the second wife’s house. This is only
metaphorically speaking, physically they all have their own houses.
“Equal treatment” in terms of money and time.

The ranking is important to determine succession in status.

Always look at the dates, because then you’ll understand which ones
were more important.

Family Law 23
 man= family head irrespective of ranking system and in charge

spouses who got married before act got into operation, did have
opportunity to change marital regime. S7.4 Recognition Act: Both
spouses can apply to have their matrimonial prop system changed

man with multiple wives: all wives must consent to change.

Wife’s status was always impeded, now they have full capacity to act and
capacity to litigate. can now hold property in her own name and lawfully
dispose of it.

Family Law 24