Traditionally ever after – Customary Marriage and divorce

29 Aug 2022

What you need to know about Customary Marriage and divorce

Many of us think long and hard about getting married, but not everyone thinks as carefully about what kind of marriage we are going to choose. We look at some of the complexities facing young couples when they choose to get married today, both from a legal and a customary perspective.

Getting married

South Africans can choose between three types of marriage as defined by our laws: a Civil Marriage, a Civil Union and a Customary Marriage, or not getting married at all.

With our complex customary traditions, one might feel as though the legal requirements of registering your Customary Marriage with Home Affairs are overwhelming and unnecessary. So why should you do it?

Customary Marriages are regulated by the Recognition of Customary Marriages Act (“RCMA”). Spouses are required to register their marriage within three months of the ceremony. However, according to the RCMA, not registering a Customary Marriage does not invalidate it. These requirements are there to provide factual evidence that the marriage took place, should there be any doubt later.

The RCMA stipulates the requirements for a Customary Marriage to be valid:

• Both prospective spouses must be eighteen years and older;
• They must consent to enter into a Customary Marriage with each other; and
• The marriage must be negotiated and entered into or celebrated in accordance with customary law.

The following evidence can be presented to the registering officer to prove that the marriage took place and fulfilled the requirements of the RCMA:

• Minutes of the negotiations, known as the Lobola letter; and
• Pictures or videos of the couple in their wedding outfits in celebration of their union.

The definition of “celebrations” under the RCMA is quite broad, so it is recommended that the couple be very careful of the events that they celebrate publicly, as this can later be used as proof that a marriage took place, even if the bride has not yet been handed over to her husband’s family!

Before starting negotiations for the marriage, the couple needs to decide on the matrimonial regime that they want to apply to their marriage. The default matrimonial regime in our country is in community of property. If their intention is to marry out of community of property, the couple needs to enter into an Antenuptial Contract before the marriage. Should they want to change the status of their marriage after the wedding, or should one spouse die intestate, they will need to bring an application to the High Court. If the marriage was not registered, it will need to be first registered and only then can the application be made for a declaratory order.

Case law, as well as recent amendments to the RCMA, gives wives in a Customary Marriage joint and equal proprietary rights. These changes mean that, despite customary gender roles, women are protected within their marriages and are covered by the same rights as wives in a Civil Marriage or Union.

Splitting up and getting divorced

Ending a Customary Marriage follows the exact same procedure as any other kind of marriage in South Africa. Under the RCMA, the couple is required to petition for a decree of divorce which can be granted after the presiding officer is satisfied that the marriage has reached such a stage of disintegration that there is irretrievable break down of the marriage relationship between the parties.

Albeit valid, if the marriage was not registered originally with Home Affairs, the couple will need to bring an application to the High Court in the absence of proof of the existence of the marriage. Once the court is satisfied of the existence of the marriage, the divorce may be granted if the court is once again satisfied that the marriage relationship has irretrievably broken down.

It is important to keep this information in mind when you begin to think about marriage. Trying to change aspects of your marriage after the ceremony can become very complicated and time consuming, which becomes costly. Our advisors can help you plan the legalities of your marriage and make recommendations before the negotiations, which will save you and your families a lot of energy later.

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Article sourced from Legal&Tax.

See also:

• Legal documents required for marriage
• Who can get divorced in South Africa?
• Blessing ceremony
• Divorce and family law call for exceptional skills

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)