How to find a divorce lawyer in Cape Town, South Africa

Divorce & claiming refund of lobola

 

A claim for refund of lobola, paid under our Customary Law, has never been tested in our legal system. The Recognition of Customary Marriages Act 120 of 1998 (RCMA) and case law can give an insight into probable legal position though.

When I studied law at Stellenbosch University, one of my chosen subjects was that of Indigenous (“customary”) law. I always found this subject to be quite fascinating. The laws that apply in customary marriages differ from the rules of normal civil marriages.

The question as to what happens to the lobola after a divorce is one that gets asked to me from time to time when I consult an African client. In essence lobola is what is paid by a man to the family of the lady who he is marrying, before the parties get married. Is this man entitled to claim back what was paid (the “bridewealth”) if the parties get a divorce? The answer to that question can be found in the Recognition of Customary Marriages Act 120 of 1998 (RCMA).

One must respect the law and culture of indigenous African people of this country. Divorce attorneys get consulted by people of different races, and it is therefore important for us to know and understand the RCMA. In terms of the RCMA, the offering of lobola is not a prerequisite for there to be a valid customary marriage. The paying of lobola does however frequently happen. In terms of the RCMA, a customary marriage must be dissolved in the same way as a normal civil marriage on divorce. Different academics have different views as to why the RCMA does not specifically state that lobola must be paid for there to be a valid marriage. Some argue that the payment of lobola is a first requirement for there to be a valid customary marriage.

In a normal civil marriage, the man would ask the lady’s father first for her hand in marriage and then propose to her with a wedding ring. We follow the Roman Dutch law, and, in terms of this if the parties get divorced, the man cannot claim back the engagement or wedding ring. The agreement to pay lobola underpins the customary marriage in our customary law.

In civil law the marriage basically “seals the deal”. The lobola contract in customary law would be the equivalent, and some say that it has a more binding force than a marriage in our civil (common) law. Lobola often takes the form of payment in the form of giving cattle to the family of the lady.

The RCMA is silent as to whether lobola can be refunded or not (just like it is silent as to whether it must be paid in the first place). It can be concluded from recent case law (Nkambule v Linda 1951 (1) SA377 (A) and Netshituka v Metshituka and Others 2011 (5) SA453 (SCA) that a claim for a refund of ilobolo remains a competent claim, despite it not being provided for either in the RCMA or the Divorce Act. This seems to differ in a way from the civil law, where the wife is entitled to keep the wedding ring post-divorce.

What interests me about lobola is that it marks the marital power of the husband over his wife and gives him exclusive access to his wife. It also gives the husband parental power over children born of his wife. Marital power in our law was abolished years back, and some may argue the husband having these powers means that the wife is unfairly discriminated against on the basis of her gender.

Lobola and customary law are very interesting topics of discussion. I hope to write more articles on these and related topics in the future on my website.

Related Articles

Dissolution of customary marriages

Recognition of Customary Marriages Act

Breach of engagement

Divorce and Customary Law

 


HOMEPAGE

married overseas annulmentreasons for divorce