Marriages performed under the Recognition of Customary Marriages Act are recognised as legal and may only be dissolved by a court through a divorce. The Star reports this was the opinion of attorney Selwyn Shapiro, who said since the Act came into force and these marriages were now recognised in law, it followed that the union had to be dissolved through divorce.

But Shapiro said that to be recognised as a valid customary marriage, the parties had to be over 18, and both had to consent to the marriage. Lobolo had to be negotiated and paid, and the marriage had to be celebrated in terms of the customs of the couple.

This last aspect, Shapiro said, may vary from tribe to tribe.

He said it was not always a clear-cut issue, as illustrated in a case in which he was appearing, and in which the ‘husband’ was contesting that the marriage was indeed concluded. In this case, the ‘wife’ claimed that she and her ‘husband’ were legally married under customary law. He, on the other hand, said the lobolo formalities were only partially concluded and there was no handing over of the bride from her family to his family. He also complained that there was no ritual slaughtering of an animal to symbolically establish a blood bond between the two families through marriage.

SCA Judge Lebotsang Bosielo – commenting on a similar case – said the Act required that the marriage had to be negotiated and entered into in accordance with customary law.

'Although Africans in general share the majority of customs, rituals and cultures, there are some subtle differences which, for example, pertain exclusively to the Ngunis, Basotho, Bapedi, VhaVenda and the Vatsonga,’ Bosielo said.

As there were so many ethnic groups and customs, it was often problematic for a court to determine which was applicable to a particular case.

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