29/11/2023
"THERE ARE UNCLES AT MY FATHER'S GATE!!"_ What does this mean for us legally?>>>
Understanding the legal significance of Lobola in South African customary marriages is crucial for couples planning their futures together. Recognising that Lobola represents a valid marriage in community of property can prevent misunderstandings and legal predicaments down the line. By considering these legal aspects, couples can navigate their marriages with a clear understanding of their rights and responsibilities.
It is crucial for couples, particularly those wishing to enter into an antenuptial contract, to be aware of the legal implications before concluding Lobola. This article aims to shed light on the legal significance of Lobola and its impact on the choice of marital property regime.
Understanding Lobola as a Valid Marriage:
Contrary to popular belief, Lobola is not merely an engagement or an informal agreement. According to South African law and court interpretations, Lobola negotiations and celebrations signify the conclusion of a customary marriage. As long as both parties are of legal age and have given their consent, a marriage is deemed to have taken place. Couples who complete Lobola ceremonies can subsequently register their customary marriage with the Department of Home Affairs and receive a marriage certificate. The registration of lobola at Home Affairs is NOT a requirement for the existence of a marriage following lobola.
Implications for Marital Property Regime:
Unfortunately, the misconception that Lobola is not a legally binding marriage leads many couples to seek an antenuptial contract after conducting Lobola. However, legally, these couples are already considered married in community of property under the Recognition of Customary Marriage Act. This means that they do not have the option to enter into an antenuptial contract to change their marital property regime.
The Default Marital Property Regime:
When Lobola negotiations are concluded and celebrated, the law recognises the couple as married in community of property. This default regime entails joint ownership of assets and shared liabilities, which can have significant legal, financial, and status implications for the couple.
Opting for an Antenuptial Contract:
Couples who wish to choose a different marital property regime, such as out of community of property, must finalise their marriage before the Lobola negotiations and ceremonies take place. Lobola itself represents a marriage in community of property, and trying to change the regime afterward is an expensive and time consuming exercise. Being aware of this legal limitation allows couples to make informed decisions and avoid potential complications.
