Many South Africans may not be aware of the serious and legal ramifications of partaking in the cultural practice of lobola.
To be on the safe side, it is important for couples to determine their desired marriage regime before embarking on any lobola process.
If the couple does not wish to get married in community of property, which is the default for customary marriages, they should ensure they have an antenuptial contract in place before initiating any lobola process.
A legal expert says it is important for couples to understand that once lobola negotiations have been initiated between the two families, that the couple in the legal sense, ceases to become single, as they can be defined as legally married under customary law.
In terms of Section 3(1) of the Act, in order for a customary marriage to be valid, it has to be entered into by a man and woman over the age of 18, who have the intention of getting married under Customary Law, and the marriage must be negotiated and entered into or celebrated in accordance with Customary Law.
This has been highlighted in case law, most notably during the HHP (Jabulani Tsambo) saga, where his partner Lerato Sengadi, who they had separated from at the time, proved in court that she was the former rapper’s legal wife after she was able to prove he had paid lobola for her and produced photographic evidence that a celebration took place.
@sindiswa.ngcobo Not a single unkept promise. ❤️ #lobola #lobolanegotiations ♬ original sound - the_squa’💥
In the absence of a stipulated antenuptial contract (ANC) couples are automatically considered married in community of property, resulting in the equal sharing of assets, such as property and vehicles, as well as liabilities.
Lobola is widely established in South Africa and each culture has its own set of rules and practices, according to Hopewell Sathekge, Director at STBB Attorneys.
ALSO READ: Is it time to cancel lobola?
The bride price
Lobola is commonly known as ‘bride price’, and lobola negotiations take place between the families of the prospective groom and bride.
“The prospective groom’s family undertake to make payment (traditionally in cattle, but in recent times in the form of money often equated to the value of cattle) to the prospective bride’s family in consideration of a customary marriage. This serves as a token of gratitude and an introduction to the family,” Sathekge explained.
Sathekge said that once the negotiations are concluded, the couple would have the same legal status as civil marriages.
The legal expert said that while civil marriages take place in a church or in front of a marriage officer, and require a marriage certificate, customary marriages follow the customs of the community and are far more flexible.
“However, what isn’t as commonly known in customary marriage, is that once lobola negotiations are concluded, couples are married in community of property, meaning that assets like a home or car and liabilities like debt are equally shared,” Sathekge emphasised.
“Therefore, when the time comes to buy a home or split assets, there are several important factors that a couple married in community of property must consider.”
It is also important to note that lobola negotiations concluding does not mean the full payment of whatever was negotiated.
However, it is also important to highlight that there is some tension and legal quandary around the question of whether lobola alone can constitute marriage under customary law. Legal expert Petros Khumalo, a family and divorce lawyer, writing in a journal on Go Legal, says on the question of “Does Lobola constitute marriage?”
“There is no doubt that lobolo is one of the essential requirements in terms of section 3(1)(b) of the Act; however, lobolo itself is no marriage,” he writes.
Khumalo adds that for lobola to be binding, it does not need to be paid in full for the nuptials to meet the requirements of the customary law. He adds that gifting and a celebration between the two families is a requirement, in addition to lobola payment.
On the question of whether couples, who had perhaps paid lobola for one another and then went on to get separated, he shared some advice.
“For those couples intending on, or in the process of concluding a customary marriage, it would be wise to register and understand the patrimonial consequences of such a marriage.
“For those separated couples who are still not sure whether they concluded a customary marriage, it would be prudent to approach the High Court for some legal certainty. Failure to do so will legally affect subsequent marriages with different partners or a partner having a claim to the other partner’s assets,” said Khumalo.
Buying a home? The marriage contract you have matters
With that in mind, it is important for couples who partake in customs and lobola negotiations to understand the legal and financial implications of the process.
For couples who enter into lobola negotiations without ANCs in place, the road ahead could get complicated in terms of your financial affairs and they could find themselves bound to their partners debt, in the very worst case scenarios.
Your marriage and the type you have plays a big role in property ownership, Gavin Lomberg, the CEO of ooba Home Loans said.
Lomberg says whether you are married in community of property or out of community of property, the type of marriage contract signed determines whether purchasing a home and financing it via a home loan requires the consent of both spouses.
“In the case of a marriage in community of property, both parties are required to apply jointly for the home loan, regardless of whether they’re a first-time or second-time homebuyer, and the home will be registered in both parties’ names,” he noted.
With this in mind, Lomberg said that it’s important that couples have a clear understanding of how being married in community of property directly impacts their legal obligations and access to credit.
“Without proper knowledge and planning, this legal arrangement may complicate decisions around property ownership, debt management, and long-term financial security,” he noted.
“Navigating this aspect of your marriage requires thoughtful consideration to ensure your homeownership goals align and this is where pre-approval of a home loan becomes vital.”
Even in the home loan pre-approval process, Lomberg said that both parties will need to have their credit scores and affordability assessed to determine whether they qualify for a joint home loan, and what they can realistically afford.
A good credit score is a must for both parties
Without an ANC in place, couples who have gone through the lobola process in terms of their customs, effectively enter into a marriage in community of property.
Should any of the two wish to finance a house or their house, both partners individual credit scores would assume considerable importance.
“Credit scores of 610-plus are required for both parties,” he emphasised.
A good credit score is used by the banks to determine your credit behaviour and whether you will be able to repay your monthly home loan on time each month, Lomberg said.
Lomberg said that a potential advantage of a joint home loan is the possibility of being approved for a bigger home loan.
“In the case of a joint home loan, some applicants may be approved for a bigger home loan as both incomes are pooled together. They may also be more likely to receive bank approval as the debt obligations fall on two parties, providing the bank with greater peace of mind. In addition, couples may receive competitive offers from the banks when shopping around.”
If however, one of the partners has a poor credit score and low affordability, it will most certainly hinder the couple's chances of being approved for a home loan, he added.
It may be prudent for a couple to have a discussion around debt, credit availability and one's credit score before lobola discussions even start, and it is preferable that discussions around ANCs are discussed and concluded before the groom’s uncles present themselves outside the would-be brides home to ask for a hand in marriage, from the parents.
@bontlemakgalo1 01-06-2024 A promise kept 🐄🤍💍 Our love story is one of unwavering devotion 🥺You have shown me the purest form of love, a love that inspires me to be the best version of myself. And I couldn’t ask for a more beautiful love story to be a part of. Thank you for being my soft landing, my safe haven and my partner in every sense of the word🤍 Here’s to a lifetime of love, my FOREVER.🤍 #lobola #lobolanegotiations #love #marriage ♬ original sound - Zamokuhle_Mthethwa
Death and divorce
When it comes to death or divorce, assets are divided equally, according to Sathekge.
The couple will have ownership or a claim on each other's property once lobola discussions are done.
“If a couple has not previously opted to formally register the customary marriage and wishes to file for divorce, they will need to go to court and get a divorce order,” he noted
“They will also be required to produce affidavits to prove that they are married,” Sathekge said.
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