Abstract

MANTHWA, AT. An Analysis of the Significance of Integration of the Bride in Customary Marriages and its Potential Constitutionality. PER [online]. 2023, vol.26, n.1, pp.1-22. ISSN 1727-3781.  http://dx.doi.org/10.17159/1727-3781/2023/v26i0a15492.

Firstly, this contribution opts for the words "integration of the bride" rather than "handing over of the bride" during customary marriages. It is argued that the term "handing over of the bride" is problematic because it creates the impression that a woman is being treated as property or that she is being sold to the groom's family. The integration of the bride is a significant step in the conclusion of a customary marriage. However, this does not mean that the process carries the same importance and weight for all traditional groups in South Africa. Some groups may regard a ritual performed during the integration of the bride so important that a customary marriage cannot be concluded without it. It is therefore important for courts to focus on cultural nuances and differences between various groups when determining if certain rituals can be waived. Courts recognise an intimate relationship as a valid customary marriage even when it has not complied with an important ritual regarded as significant for the conclusion of a customary marriage. The courts should rather focus on other available avenues to protect vulnerable partners from the consequences of an intimate relationship's not being recognised as a valid customary marriage. The courts must recognise the fact that the consent of the bride-to-be is important when determining whether a marriage was concluded. This refers to the consent of the bride to perform a ritual which is part of the ceremony of the integration of the bride. So, a marriage must not be recognised as valid if the bride did not consent to it or did not consent to a ritual performed as part of concluding a customary marriage. While the constitutionality of the integration of the bride was raised in an obiter dictum in the 2019 case of Sengadi v Tsambo, the primary consideration should be the consent of the bride. Integration should not be a problem where the bride has consented to it.

Keywords : Customary law; customary marriage; integration of the bride; ritual; cultural group; waiver; consent.

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