Is Court Needed to End a Customary Marriage?

In South Africa, many couples marry under customary law, embracing the rich traditions and cultural practices that bind communities. 

But what happens when the marriage doesn’t work out, especially if it was never registered with the Department of Home Affairs? 

Do you still need to go to court to have the marriage dissolved? Let’s delve into this question, guided by the Recognition of Customary Marriages Act No. 120 of 1998 (the Act) and explore a real-life case that sheds light on the matter.

Legal Recognition of Customary Marriages

The Recognition of Customary Marriages Act was enacted to provide legal status to marriages conducted according to the customs and traditions of various communities in South Africa. For a customary marriage to be valid under Section 3 of the Act, the following conditions must be met:

1. Age Requirement: Both parties must be above the age of 18 years.
2. Mutual Consent: Both parties must consent to be married to each other under customary law.
3. Cultural Compliance: The marriage must be negotiated, entered into, and celebrated in accordance with customary law.

Interestingly, even if a customary marriage is not registered with the Department of Home Affairs, it does not mean the marriage is invalid. Section 4(9) of the Act clearly states that failure to register a customary marriage does not affect its validity. However, the issue of dissolution becomes more complex when the marriage is unregistered.

Dissolution of Customary Marriages: The Court’s Role

The dissolution of a customary marriage, much like civil marriages, requires a legal process to ensure all rights and obligations are appropriately addressed. According to Section 8(1) of the Act:

1. Court’s Involvement: A customary marriage may only be dissolved by a court through a decree of divorce on the grounds of the irretrievable breakdown of the marriage.
2. Grounds for Divorce: The court must be satisfied that the marriage has reached such a state of disintegration that there is no reasonable prospect of restoring a normal marriage relationship between the parties.

This means that, regardless of whether the marriage was registered, the court must handle the dissolution. This ensures that matters like the division of assets, spousal maintenance, and child custody, if applicable, are resolved fairly.

A Case Law Insight: Gumede v President of the Republic of South Africa

To better understand how the courts handle such cases, consider the landmark case Gumede v President of the Republic of South Africa [2008]. In this case, Mrs. Gumede sought the dissolution of her customary marriage, which had not been registered. She argued that her marriage should be considered valid under the Act, despite the lack of registration, and that the court should address the division of matrimonial property.

The Constitutional Court ruled in her favor, emphasizing that the failure to register a customary marriage does not invalidate it. The court further held that the rights of women in customary marriages must be protected, and that the same principles applied in civil divorces should also apply to the dissolution of customary marriages. This case underscored the importance of court intervention to ensure that all legal aspects, including property rights, are respected during the dissolution of a customary marriage.

 Why Registration Still Matters

While the law clearly states that an unregistered customary marriage is still valid, it’s advisable to register your customary marriage with the Department of Home Affairs. Registration ensures that your marriage is fully recognized, making any legal processes, including dissolution, more straightforward. It also helps protect your rights and the rights of your spouse, providing a clear legal framework in the event of divorce.

In summary, if you’re in a customary marriage that’s not working out, you will need to go to court to dissolve it, regardless of whether it was registered. The court’s involvement is crucial to ensure that all legal issues, such as the division of assets and maintenance, are properly resolved.

If you are facing challenges in your customary marriage, whether registered or unregistered, our team at NB Makhanya Attorneys Inc. is here to guide you through the legal process. We understand the complexities involved and are committed to protecting your rights every step of the way. Contact us today to schedule a consultation and take the first step towards a fair and just resolution.