Page 15 - SAReform Book

Summary Research Report 13 3. Findings on various topics
In this section we discuss the findings on the implementation of the new laws in the areas of contract of marriage, divorce, succession, and dispute resolu- tion.
3.1 Contracting a customary marriage
The research on the contract of marriage focused on the requirements for a valid customary marriage entered into after the commencement of the Act, the registration of marriages, polygyny, and equality of spouses in marriage.
3.1.1 The core requirements for a valid marriage in the courts and in practice
The study found that the courts require the payment of lobolo and the integration of the wife into the husband’s family for the conclusion of a valid marriage. In some cases, part or full payment of lobolo is a prerequisite for concluding a valid marriage, while the agreement to pay is sufficient in other cases. These requirements for a marriage are the same as the requirements in living customary law. Thus, any interpretation of the provisions of the RCMA that excludes lobolo as a requirement for a valid marriage is out of sync with both the practice of the courts and living customary law. The study also found that both men and women attach a great deal of significance to lobolo. This finding supports existing research evidence.9 The centrality of lobolo in the negotiation process is connected to its multifaceted significance, some of which has human rights connotations, especially for women who view lobolo as a mark of respect.
The view that actual payment is required for the validity of the marriage contributes to the processual nature of the marriage, which in turn creates some disadvantages and challenges for the parties to the marriage. Some of these disadvantages are gendered and affect women more greatly. This is particularly problematic when proof of a valid marriage is required. It is also problematic in light of the escalating amounts of lobolo, which some men are not able to pay for long periods of time. In order to minimise these problems we argue that an agreement for the payment of lobolo is sufficient for the conclusion of a valid marriage. A mere agreement to pay lobolo should therefore be recognised as a development of customary law that accords with the spirit, purport and objectives of the Bill of Rights (s 39(2) of the Constitu- tion). However, this argument is premised on the understanding that the parties and their families are free to determine the terms of the agreement and that these terms must be observed.
There is also evidence of a second core requirement of marriage, namely, the integration of the wife into the family of her husband.
The noted regularised core requirements for a valid marriage arguably represent living customary law. It is therefore acceptable for the courts to
9 Shope ‘ ‘‘Lobolo is here to stay’’: Rural black women and the contradictory meanings of lobolo in post-apartheid South Africa’ (2006) 20 Agenda 64–72.