“Til death us do part” quickly becomes complicated if a couple is married under customary law and the surviving partner tries to claim from life insurances and pensions.
Nomfusi Bosman had to turn to the Bhisho High Court for help after her husband died. She had been married to Lumkile Gobizembe under customary law, but when it came time to claim his pension, she was not recognised by the Government Employees’ Pension Fund.
Instead, Gobizembe’s two adult children were destined to be the recipients of their father’s money.
When Bosman took the matter to court, judge Dawid van Zyl ruled that pending the registration of Bosman and Gobizembe’s union with the Department of Home Affairs, the pension fund should be interdicted from making any payments.
If money had already been paid out to the children, they were ordered to pay it back.
Bosman has been declared Gobizembe’s survivor, life partner and dependent.
“ is entitled to lodge a claim for benefits accruing to the late Lumkile Gobizembe in terms of the Government Employees’ Pension Fund,” Van Zyl ruled.
According to the LegalWise website, customary marriages entered into before 15 November 2000 are governed by the customary law prevailing at the date of marriage and are not protected by the law. However, couples have until December 31 next year to register those marriages.
Customary marriages after 15 November 2000 are given full recognition by the law but should be registered with the Department of Home Affairs within three months.
According to the department’s website, this can be done at any office of the Department of Home Affairs or through a designated traditional leader in areas where there are no Home Affairs offices.
Some of the requirements for a customary marriage include:
- The marriage must be negotiated, entered into or celebrated in accordance with customary law;
- The prospective spouses must be above the age of 18 years;
- The parents of a prospective spouse who is a minor must consent to the marriage; and
- Both prospective spouses must consent to the marriage.
But East London-based attorney Alex Gwabeni said as far as the law was concerned, there is nothing compelling couples to register their customary marriage.
He referred to Section 4 subsection 9 of the Recognition of Customary Marriages Act 120 of 1998, which says: “Failure to register a customary marriage does not affect the validity of that marriage.”
Gwabeni said: “A customary marriage is complete when a ceremony called umendiso is performed.
“During this ceremony the bride’s family escorts her to the groom’s home.
“Until that delivery of the bride ceremony happens, a couple is simply cohabiting.”
A customary law expert, Professor Siqhelo Koyana, said lobola was the cornerstone of all customary marriages.
“Lobola is the rock on which customary marriage is founded.
“It is essentially the marriage certificate of the union. Not a sale as the West believes,” he said.
Koyana also emphasised umendiso and how important this ceremony is.
“The umendiso ceremony is what makes the marriage valid.
“Yes, registration is strongly recommended for the recognition of the marriage because it serves as proof, but non-registration does not make the customary marriage invalid,” he said.
However, Koyana added that when a couple did not register their marriage, following the death of a partner the surviving partner would have no choice but to lead evidence in court to prove their union if they were not listed as a beneficiary in any insurance or pension pay-out.
“In that case, there will have to be people that testify that indeed the marriage did exist,” he said.
Khensani Mthobeni of Discovery Life insurance said they did recognise customary marriages.
“Our definition of spouse as per our funeral plan guide is: ‘Spouse’ is the person that you are legally married to and that includes a customary marriage, a union recognised as a marriage by any Asian religion, a member living with you as a long-term partner and any person you consider as your common-law spouse is also considered by us as such,” she said.
Mthobeni said there was no defined period for which the couple has to be married in order for their marriage to be recognised.
“Discretion is used but six months is often used as a guideline,” she said, adding that every claim is investigated before payments are made.
Katlego Tselapedi, the media and external stakeholder relations officer of the Government Pensions Administration Agency, said a lobola letter was vital.
“We do recognise customary marriages. However, a letter must be written after the negotiations have been concluded.
“On the letter must be the date of the negotiations, the amount agreed on and representatives from both families must sign it.
“There must be people that testify from both sides that the couple was married,” he said.
Tselapedi added: “In the absence of the lobola letter there must be an affidavit that is submitted as proof of the union.” — siyab@dispatch.co.za
Customary vows and inheritance
Nomfusi Bosman had to turn to the Bhisho High Court for help after her husband died. She had been married to Lumkile Gobizembe under customary law, but when it came time to claim his pension, she was not recognised by the Government Employees’ Pension Fund.
Instead, Gobizembe’s two adult children were destined to be the recipients of their father’s money.
When Bosman took the matter to court, judge Dawid van Zyl ruled that pending the registration of Bosman and Gobizembe’s union with the Department of Home Affairs, the pension fund should be interdicted from making any payments.
If money had already been paid out to the children, they were ordered to pay it back.
Bosman has been declared Gobizembe’s survivor, life partner and dependent.
“ is entitled to lodge a claim for benefits accruing to the late Lumkile Gobizembe in terms of the Government Employees’ Pension Fund,” Van Zyl ruled.
According to the LegalWise website, customary marriages entered into before 15 November 2000 are governed by the customary law prevailing at the date of marriage and are not protected by the law. However, couples have until December 31 next year to register those marriages.
Customary marriages after 15 November 2000 are given full recognition by the law but should be registered with the Department of Home Affairs within three months.
According to the department’s website, this can be done at any office of the Department of Home Affairs or through a designated traditional leader in areas where there are no Home Affairs offices.
Some of the requirements for a customary marriage include:
But East London-based attorney Alex Gwabeni said as far as the law was concerned, there is nothing compelling couples to register their customary marriage.
He referred to Section 4 subsection 9 of the Recognition of Customary Marriages Act 120 of 1998, which says: “Failure to register a customary marriage does not affect the validity of that marriage.”
Gwabeni said: “A customary marriage is complete when a ceremony called umendiso is performed.
“During this ceremony the bride’s family escorts her to the groom’s home.
“Until that delivery of the bride ceremony happens, a couple is simply cohabiting.”
A customary law expert, Professor Siqhelo Koyana, said lobola was the cornerstone of all customary marriages.
“Lobola is the rock on which customary marriage is founded.
“It is essentially the marriage certificate of the union. Not a sale as the West believes,” he said.
Koyana also emphasised umendiso and how important this ceremony is.
“The umendiso ceremony is what makes the marriage valid.
“Yes, registration is strongly recommended for the recognition of the marriage because it serves as proof, but non-registration does not make the customary marriage invalid,” he said.
However, Koyana added that when a couple did not register their marriage, following the death of a partner the surviving partner would have no choice but to lead evidence in court to prove their union if they were not listed as a beneficiary in any insurance or pension pay-out.
“In that case, there will have to be people that testify that indeed the marriage did exist,” he said.
Khensani Mthobeni of Discovery Life insurance said they did recognise customary marriages.
“Our definition of spouse as per our funeral plan guide is: ‘Spouse’ is the person that you are legally married to and that includes a customary marriage, a union recognised as a marriage by any Asian religion, a member living with you as a long-term partner and any person you consider as your common-law spouse is also considered by us as such,” she said.
Mthobeni said there was no defined period for which the couple has to be married in order for their marriage to be recognised.
“Discretion is used but six months is often used as a guideline,” she said, adding that every claim is investigated before payments are made.
Katlego Tselapedi, the media and external stakeholder relations officer of the Government Pensions Administration Agency, said a lobola letter was vital.
“We do recognise customary marriages. However, a letter must be written after the negotiations have been concluded.
“On the letter must be the date of the negotiations, the amount agreed on and representatives from both families must sign it.
“There must be people that testify from both sides that the couple was married,” he said.
Tselapedi added: “In the absence of the lobola letter there must be an affidavit that is submitted as proof of the union.” — siyab@dispatch.co.za
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