Consent and Other Ancillary Matters as Requirements of a Customary Marriage: LNM v MMM (2020/11024) [2021] ZAGPJHC 563 (11 June 2021)

Abstract

Consent may be seen as a fundamental human right. On the issue of marriage, people should only be married with their consent. A marriage without consent is a forced marriage. Section 3(1)(a)(ii) of the Recognition of Customary Marriages Act 120 of 1998 not only requires consent, but also requires specific consent for a marriage to take place under customary law. The Act is clear that consent to being married under customary law is one of the requirements for validity. If specific consent is lacking, there cannot be a valid customary marriage. This case note focusses on the decision in LNM v MMM where specific consent was one of the issues. It discusses whether consent of the guardian is still a requirement for customary marriages under the Act. It also discusses the required specific consent in detail and then considers the form that specific consent should take, noting that specific consent should not be inferred from the act of negotiating and delivering ilobolo as African people do for a civil marriage. In LNM v MMM the court also held that the handing over of the bride is "not imperative". By this, the court meant that the handing over of the bride was an unnecessary custom. This is not in accordance with the cases referred to in the judgment. This case note will respond to this. Should a customary marriage without specific consent to marry under customary law be annulled?

Keywords

• Marriage
• Consent
• handing over