Before the Lobola negotiations this weekend, discuss an ante nuptial contract with your partner
The Citizen spoke to lawyer Tebello Motshwane about the intricacies couples overlook when getting married.
Cattle set for the bride’s family in the lobola negotiations. Picture: Khaya Ngwenya/City Press/Gallo Images/Getty Images)
“And as a result of a misunderstanding between ourselves and the marriage officer, who conducted the marriage ceremony, we understood incorrectly as it now appears that he would be in a position to ensure that our marriage would be out of community of property without the application of the accrual system,” read Bantwini’s affidavit to the court, leaked to the media. This was four years into their marriage.
As I type this, South Africans are in their various daily-commitments but in the back of their minds is the upcoming long-weekend as the country will commemorate Heritage Day.
One of the activities that take place around this time of the year are lobola negotiations between families of couples who want to tie the knot. But it’s usually here couples tend to make mistakes that will have them running to the courts to have things fixed later, or worse, if a couple divorces they realise the irreversible mistakes when it’s too late.
Iron things out, first
Lawyer, Tebello Motshwane has dedicated herself to empowering and educating women through her platform, Sister in Law.
Such is her zeal for legal education, that her pinned tweet emphasises the importance of drafting an ante nuptial contract before the dowry negotiations take place.
“For those who subscribe to traditional practices, customary marriages are regulated by the Recognition of Customary Marriages Act 120 of 1998 (RCMA) and according to this piece of legislation there are three requirements that have to be met in order for a customary marriage to be concluded,” Motshwane says.
The first of these is the spouses must be over 18, must consent to being married under customary law, and the union must be negotiated and entered into or celebrated in accordance with customary law.
According to Motshwane, the RCMA does not specifically mention payment of lobola as a requirement for a customary marriage, therefore the lines can be blurred during the negotiations stage which may then lead to a celebration taking place (even if in the form of a small lunch between the families).
“These actions by the prospective spouses and families can be construed as a conclusion of a customary marriage. That is why it is important for especially black people to have a marriage contract drawn up before the negotiations take place so as to avoid any confusion,” the lawyer said.
“Failure to have this contract could result in the parties being declared to be married in community of property – the default marriage regime which applies in South Africa.”
Section 4(9) of the RCMA states failure to register a customary marriage does not render the marriage invalid.
“It is however advisable for couples to prioritise registering their customary marriages at Home Affairs within three months after negotiations and/or celebrations take place so as to have readily available proof of the existence of their marriage in the form of a certificate.”
Motshwane says couples should speak specifically about money before marrying.
“That is marriage contracts. The contracts determine how the parties will deal with their finances in future.”
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It’s like car insurance…
The significance of a marriage contract can be largely misunderstood by a majority of Blacks because most of our parents never discussed these things when they got married, she said. Marrying out of community of property is viewed as something scandalous.
However, Motshwane’s explanation gives one a better understanding of its importance to the health of a marriage.
“You do not purchase a car with the intention of getting into an accident but in the event that you do, you want to make sure your asset is protected. The same applies for a marriage contract, even if you are not intending to divorce, there are external factors which could affect your marriage i.e. debt of one spouse,” explains the law expert and mother of three.
“You want to mitigate as much of the loss as possible by ensuring that you are not liable for each other’s debts because it can happen that you lose everything as a couple if you join your respective estates in community of property.”
Motshwane says a number of clients observe customary practices and still conclude a civil marriage afterwards. She says nothing precludes a couple who are married under customary law to subsequently enter into a civil marriage with each other.
“It is important that if the couple do not want to be married in community of property then they must ideally sign the marriage contract before negotiations. In fact, I strongly suggest it be done before negotiations take place.”
Limited access to information
The partial or complete paucity of access to information is the biggest Achilles for couples, which leads to the misunderstanding of laws.
“I believe our people have limited access to this kind of information or even if they have the information they are not able to relate to it. It is a combination of limited access and the information not being 100% relatable,” Motshwane says.
What the future holds
The admitted attorney of the High Court of South Africa does not envisage a future where black South Africans totally do away with customary marriage.
“I believe with more and more information being shared on platforms such as Sister In Law, more and more Black people will learn that a customary marriage is a valid and sufficient marriage. Sister In Law is actually behind a high court application aimed at challenging the constitutionality of the various marriage acts. Therefore, I envisage a future where parties choose either a civil marriage or customary marriage, without the option of converting to another system or vice versa.”
Empowering the people
Through her organisation Sister In Law, Motshwane will host the I Am Lady Justice Workshop at the end of September in Sandton.
The event is an extension of the legal information shared on various Sister In Law social media pages and provide women with an opportunity to engage with a panel of legal experts on various issues pertaining to marriage law, divorce, child maintenance, Wills and deceased estates.
“One will not get a consultation with this many legal experts in the room and at this cost anywhere. Limited tickets are available at R750 per person on www.sisterinlaw.co.za.”
The event is open to all, including men.