(This article is for general informational purposes only and does not constitute formal legal advice)
There is a big question popping up in South African courtrooms lately: Does paying lobola mean you are officially married the moment the money is handed over?
The answer is "not necessarily" and getting it wrong can have huge consequences for your bank account and your future.
1. How Things Used to Work
Back in the day, our cultures generally had one main way to get married. Because there was only one "destination," everyone knew that paying lobola was the clear path to that marriage. It was safe to assume that once lobola was paid, the couple was married because there weren't other legal options to choose from.
2. The "Crossroads" of Modern Life
Times have changed. Today, we have many different ways to get married under the law. You might want a customary marriage, or you might want a civil marriage at Home Affairs. You might want to be "In Community of Property" (sharing everything), or you might want an ANC (keeping your assets separate).
Because there are so many choices, lobola has become a crossroads. It’s the first step you take before choosing which legal path to walk.
If we force lobola to automatically count as a marriage every time, we actually hurt our traditions. Why? Because people who want a civil marriage might start skipping lobola entirely just to avoid being "accidentally" married under customary law. To save the tradition, we have to be stricter about what lobola actually is: a precursor, not the finish line.
3. The Law’s Job: Making Things Clear
Our government makes laws (like the RCMA) to create a "common starting point" for all the different cultures in South Africa.
One of the most important rules in this law (Section 3) says that for a marriage to be real, both people must consent (agree) to be married under customary law. This is the law's way of making sure everyone is on the same page, no matter their tribe or tradition.
4. You Can’t Agree to Something You Don’t Know About
"Legal consent" is just a fancy way of saying you know exactly what you’re signing up for. If a couple pays lobola but doesn’t realize that doing so might make them "legally married" right then and there, they haven't really consented. You can't agree to a marriage that you didn't even know was "on the table" yet!
The Constitutional Court has said that while our customs can change and grow (they call this "Living Law"), these changes cannot ignore the rule of consent. If a court decides you are married when you didn't intend to be, they are basically "manufacturing consent" they are putting words in your mouth and forcing a marriage on you that you didn't ask for.
5. The "celebration" Problem
You might have heard about the HHP case (Sengadi v Tsambo). Many people think the court got rid of traditional rituals like "handing over the bride." That’s not actually what happened.
Instead, the court looked at the photos of the celebration, the traditional outfits, and the singing, and assumed that because there was a big party, the families must have decided the marriage was finished.
This is a big mistake. As South Africans, we are celebratory people! We celebrate in our own way when negotiations start just as much as when they end. By confusing a "lobola celebration" with a "wedding celebration," the courts are accidentally trapping people in marriages before they are ready.
Conclusion: Protecting Our Traditions
To keep our traditions alive, we have to be clear: lobola is a "contract to marry," not the marriage itself. This was how almost everyone understood it before the recent confusion in the courts.
If we let the courts "guess" whether we are married or not, we create a legal trap. It forces people to choose between their culture and their legal safety.
The Solution: To protect the sanctity of lobola, your intention must be the anchor. If you are paying lobola but don't want to be "officially married" until a later date, you must put it in writing. In a world where a judge might misread your celebration as a final wedding, a simple piece of paper is the only way to make sure that you and not the court stay in charge of your life.
(This article is for general informational purposes only and does not constitute formal legal advice)