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Law: Requires couples in a traditional wedding to equally share property during divorce

Law: Requires couples in a traditional wedding to share property on divorce

What does the Law say about Traditional marriage

When it comes to traditional marriage, one of the most common misconceptions is that women do not believe they are entitled to an equal share of the assets in the event of a divorce.

Women frequently believe that everything belongs to their husband and his family and that they must simply walk away.

However, there are ways to ensure that the woman does not leave empty-handed.

Here’s what she should know before entering a traditional marriage and what she should do if her relationship ends.

Law: Make sure your customary marriage is legal

Sometimes a woman tries to claim maintenance from her customary-law husband only to have him refuse to acknowledge the marriage took place.

He claims the lobola payments weren’t finalised and the marriage wasn’t celebrated according to customary law.

How can you ensure the legality of your marriage?

According to Moremadi Mabule, the head of Sanlam Wills Operations, the following requirements must be met:

1) Both parties to the marriage must be over the age of 18.

2) Under customary law, both parties must have given their consent to marry. The other wife or wives must also consent in a polygamous marriage.

3) Payment of lobola is not enough to validate a marriage. According to the law, the marriage must be negotiated, celebrated, and entered into in accordance with the relevant traditions and customs of both parties. It is best to register the marriage with the Department of Home Affairs to avoid any confusion.

If you don’t register the marriage, it doesn’t mean it isn’t valid. However, if you do register, the relationship’s status then becomes unmistakable.

The Law regards partners as equal 

Unless the couple draws up an antenuptial agreement that clearly states that it is out of community of property, all traditional marriages are in community of property.

Community of property means that all of the assets you and your husband own are combined into a single joint estate.

In a traditional marriage, all spouses have joint and equal ownership of marital property.

As a result, the wife, or all wives, are equal partners with the husband. If the marriage fails, they are entitled to a portion of everything.

What to do if your relationship is failing ?

Customary marriages can only be ended by filing for divorce in a court of law.

Even if you did not register your marriage at home affairs, you must still file for divorce to legally end your union.

Mabule believes that both parties should hire their own attorneys who understand customary law and are members in good standing of the Law Society of South Africa (see Get help here).

Get an estimate of legal fees, and if you pay a deposit, get a receipt.

If you can’t afford a lawyer, Mabule suggests seeking advice from a Legal Aid clinic at a nearby university.

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