How a customary marriage is made
A customary marriage is an agreement between two families rather than a ceremony before an official. The groom's family pays bridewealth to the bride's family, among the Dinka and Nuer traditionally in cattle and today often partly in money, and the marriage exists once the families have agreed and the payment, or an agreed first part of it, has been made. There is usually no certificate at the time. The witnesses are the relatives and elders who negotiated and the chief who may have been present. Church and civil marriages also exist, and many couples have both a customary and a church marriage.
Divorce and the return of bridewealth
Under customary law a marriage ends when the families agree to end it or a customary court dissolves it, and the central question is the bridewealth: how much of it the bride's family must return. The answer depends on the community's rules, on who is held responsible for the breakdown and on how many children the marriage produced, since children are counted against the return. Custody follows the same logic. Where bridewealth has been paid, the children belong to the father's lineage under most South Sudanese customary systems, whatever the arrangements for their day-to-day care, and this is the point on which customary law and the statutory courts' concern for the child's welfare most often diverge.
Proving the marriage to a court or authority abroad
Foreign courts and immigration authorities generally recognise a marriage that is valid under the law of the place where it was concluded, so a customary marriage can found a spouse visa, a family reunification application or an inheritance claim. The difficulty is evidence. The usual documents are a marriage certificate obtained afterwards from a County Court or the civil registry on the strength of the families' statements, a letter from the chief or the church, and sworn statements from the relatives who witnessed the agreement and the payment. Authorities abroad then ask whether these documents are genuine and whether the marriage they describe is a valid marriage under South Sudanese customary law.
That second question is where a written legal opinion comes in. Prof. Jok writes opinions for lawyers, courts and immigration authorities that set out the customary rules of the community concerned, explain what the documents show and whether the marriage, divorce or custody arrangement is valid under South Sudanese law. See legal opinions and, for clients in Finland, the Finland page.
Questions people ask
Is a customary marriage legally valid in South Sudan?
Yes. The Transitional Constitution of 2011 recognises customary law, and customary marriages are valid marriages. No certificate is needed for the marriage to exist, though one can be obtained afterwards.
How do I get a marriage certificate for a customary marriage?
By applying to a County Court or the civil registry with statements from the families and, where possible, a letter from the chief or church. The certificate records a marriage that already exists; it does not create it.
Will Finland, the UK or another country recognise my customary marriage?
In general a marriage valid where it was concluded is recognised abroad. What the foreign authority will scrutinise is the evidence that the marriage took place and is valid under South Sudanese law, which is what a legal opinion addresses.
