Divorcing a customary marriage is a court process. It is not concluded between the two families, and it is not achieved by returning lobolo. Many spouses discover this only years later, when a pension pays out, a property transfer is blocked, or a deceased estate is reported and the question of who was married to whom has to be answered with evidence.
The Recognition of Customary Marriages Act 120 of 1998 governs the position. Section 8 of the RCMA sets out how a customary marriage is dissolved. Sections 3, 4 and 7 deal with validity, registration and property. Together they determine what a court must be satisfied of before granting a decree, and what it may order about property, maintenance and children. This article explains what the law requires, which court hears the matter, what evidence carries weight, and the practical difficulties that make these matters take longer than they should.
Divorcing a customary marriage requires a decree of divorce from a court
Section 8(1) of the RCMA is absolute on this point. A customary marriage may only be dissolved by a court, by a decree of divorce, on the ground of the irretrievable breakdown of the marriage.
A meeting between the two families, an agreement that the marriage is over, a decision about lobolo, and an acknowledgement by the elders that the union has ended according to custom are all real and often important events. None of them dissolves the marriage in law. Until a court grants a decree, the marriage subsists, the matrimonial property regime continues to operate, and neither spouse is free to remarry.
Customary processes are not disregarded. Section 8(5) preserves the role recognised in customary law of any person, including a traditional leader, in mediating a dispute or matter arising before the dissolution of the marriage by a court. The two processes run alongside each other. The customary process addresses the relationship between the families. The legal process addresses the division of property, maintenance, and the care of and contact with any minor children.
Lobolo deserves a direct answer, because it is the most common misconception. The RCMA does not make the return of lobolo a requirement for a divorce, and returning lobolo does not end the marriage. A dispute about lobolo is a separate matter of customary law between the families. It does not hold up the decree.
Section 8 of the RCMA and the ground of irretrievable breakdown
There is one ground on which a court may dissolve the marriage. Section 8(2) permits a decree on the ground of the irretrievable breakdown of the marriage if the court is satisfied that the marriage relationship has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between the parties.
That is the same test the Divorce Act 70 of 1979 applies to civil marriages, and the drafting is deliberately identical. A court looks for evidence of disintegration, not evidence of fault. Long separation, the end of any shared household or financial life, and the absence of any realistic prospect of reconciliation are the kinds of facts that support the ground. Whether the evidence in a particular case is sufficient depends on the facts placed before the court.
Section 8(3) imports two further instruments. The Mediation in Certain Divorce Matters Act 24 of 1987 applies, under which the Office of the Family Advocate may institute an enquiry where the interests of minor children are involved. Section 6 of the Divorce Act also applies, so a decree may not be granted until the court is satisfied that the arrangements made or contemplated for the welfare of any minor or dependent child of the marriage are satisfactory, or are the best that can be effected in the circumstances.
Section 8(4) sets out what the court may do once it grants the decree. It has the powers contained in sections 7, 8, 9 and 10 of the Divorce Act and section 24(1) of the Matrimonial Property Act 88 of 1984, covering the division of assets, spousal maintenance, variation of maintenance and children’s orders, forfeiture of patrimonial benefits, and costs. Section 8(4)(c) allows the court to order that any person with a sufficient interest in the matter be joined. Section 8(4)(d) allows an order regarding the custody or guardianship of a minor child. Section 8(4)(e) allows the court, when ordering maintenance, to take into account any provision or arrangement made in accordance with customary law.
Which court hears a customary marriage divorce
Section 1 of the RCMA defines “court” as a High Court or a court for a regional division as contemplated in section 29(1B) of the Magistrates’ Courts Act 32 of 1944. Section 29(1B)(a) is explicit: a court for a regional division has jurisdiction to hear and determine suits relating to divorce, to decide any question arising from them, and to hear any matter and grant any order provided for in terms of the Recognition of Customary Marriages Act.
Jurisdiction is territorial. A court has jurisdiction if a party is domiciled within its area on the date proceedings are instituted, or is ordinarily resident within that area on that date and has been ordinarily resident in the Republic for at least one year immediately before that date.
Most spouses divorcing a customary marriage proceed in the regional court. The High Court generally takes the more complex matters, including substantial proprietary disputes, constitutional questions, or a challenge to the validity of the marriage itself. High Court proceedings are typically more expensive and slower.
Timing follows the same logic. An uncontested customary marriage divorce can be finalised within a few months, depending on the court roll and whether the documentation is in order. A contested matter, particularly one involving a dispute about the existence of the marriage or multiple spouses, may take a year or longer. Costs rise accordingly through pleadings, discovery, expert evidence and trial preparation.
If you are unsure which forum suits your circumstances, the choice made at the outset affects both cost and timeline. Contact Vermeulen Attorneys to arrange an initial consultation.
Proving that the customary marriage exists
A court cannot dissolve a marriage it is not satisfied exists. Where validity is disputed, and it often is, that question has to be resolved first. This is the largest cause of delay when divorcing a customary marriage, and it is a distinct enquiry from the dissolution enquiry under Section 8 of the RCMA.
Section 3(1) sets the requirements for a customary marriage entered into after the commencement of the Act. Both prospective spouses must be above the age of 18 years, both must consent to be married to each other under customary law, and the marriage must be negotiated and entered into or celebrated in accordance with customary law. What the third requirement demands depends on the customary law of the community concerned, which is why evidence from family members and elders carries real weight.
Registration is a separate question from validity. Section 4(8) provides that a certificate of registration constitutes prima facie proof of the existence of the marriage and of the particulars in the certificate. Section 4(9) provides that failure to register a customary marriage does not affect its validity. An unregistered customary marriage may well be valid. The absence of a certificate simply means the marriage has to be proved by other evidence. Section 4(7) allows a court, on application and after investigation, to order the registration of a customary marriage or the cancellation or rectification of a registration effected by a registering officer.
The proprietary consequences of a customary marriage on divorce
The regime that governs the division of property is determined by law, not by how the spouses managed their finances during the marriage. It depends on when the marriage was concluded and on whether the spouse concerned is a partner in more than one customary marriage. The determination of the regime is dealt with in more detail in our companion article on the proprietary regime of a customary marriage.
Section 7 of the RCMA was substituted in material respects by the Recognition of Customary Marriages Amendment Act 1 of 2021, which took effect on 1 June 2021. The proprietary consequences of a customary marriage must therefore be assessed against the current text of section 7, and not against assumptions carried over from the earlier position.
Monogamous customary marriages
Section 7(2) provides that a customary marriage in which a spouse is not a partner in any other existing customary marriage is a marriage in community of property and of profit and loss, unless those consequences are specifically excluded by the spouses in an antenuptial contract which regulates the matrimonial property system of their marriage.
Where the marriage is in community of property, section 7(3) applies Chapter III and sections 18, 19, 20 and 24 of Chapter IV of the Matrimonial Property Act 88 of 1984. On divorce the joint estate is divided, subject to any order the court makes under the Divorce Act powers imported by section 8(4)(a), including a forfeiture order under section 9 of the Divorce Act where the court is satisfied that one party would otherwise be unduly benefited.
A polygynous customary marriage and joint and equal ownership
Section 7(1)(a) governs a customary marriage in which a person is a spouse in more than one customary marriage, where that marriage was entered into before the commencement of the Act on 15 November 2000. The spouses in such a marriage have joint and equal ownership and other rights, and joint and equal rights of management and control, over marital property.
Section 7(1)(b) explains how those rights are exercised. In respect of all house property, they are exercised by the husband and the wife of the house concerned, jointly and in the best interests of the family unit constituted by that house. In respect of all family property, they are exercised by the husband and all the wives, jointly and in the best interests of the whole family constituted by the various houses. Section 7(1)(c) preserves each spouse’s exclusive rights over personal property. The meanings of marital, house, family and personal property are those ascribed to them in customary law.
Working out what falls into which category, and what a fair division looks like across several houses, is fact-intensive. It is also an area where the law continues to develop, and the 2021 Amendment Act should not be read as having settled every proprietary question arising from these marriages.
A polygynous customary marriage entered into after 15 November 2000 is governed differently. Section 7(6) requires a husband who wishes to enter into a further customary marriage to apply to the court to approve a written contract regulating the future matrimonial property system of his marriages. Section 7(7) directs the court, where the existing marriage is in community of property or subject to the accrual system, to terminate that system, effect a division of the matrimonial property, ensure an equitable distribution, and take into account all the relevant circumstances of the family groups affected. The court may allow amendments, grant the order subject to conditions, or refuse the application if the interests of any of the parties would not be sufficiently safeguarded. Section 7(8) requires that all persons with a sufficient interest, in particular the existing spouse or spouses and the prospective spouse, be joined.
Where no section 7(6) contract was obtained, which is common, the proprietary position is contested and has to be argued on the facts. Section 8(4)(b) is the provision the court works with on divorce. Where the husband is a spouse in more than one customary marriage, the court must take into consideration all relevant factors, including any contract, agreement or order made under section 7(4), (5), (6) or (7), and must make any equitable order that it deems just.
Joinder is not a formality. Every wife whose legal rights or proprietary interests may be affected should be joined and given notice and an opportunity to be heard before any order is granted. Failure to join an affected wife delays proceedings and can put the resulting order at risk.
Where an antenuptial contract or court-approved contract exists
An antenuptial contract only assists the spouse relying on it if it was validly executed and is enforceable. Where a marriage is out of community of property in terms of a valid antenuptial contract, the court’s powers on divorce are exercised against that regime rather than against a joint estate.
Section 7(4) allows spouses in a customary marriage entered into before commencement to apply jointly for leave to change the matrimonial property system. The court may grant leave if satisfied that there are sound reasons for the proposed change, that sufficient written notice has been given to all creditors of the spouses for amounts exceeding R500 or such amount as the Minister of Justice may determine by notice in the Gazette, and that no other person will be prejudiced. Where the husband is a spouse in more than one customary marriage, section 7(4)(b) requires all persons with a sufficient interest, in particular the existing spouse or spouses, to be joined.
If you are uncertain which regime governs your marriage, the answer changes what you can claim and what you may be exposed to. Our team handles both contested divorce and uncontested divorce matters arising from customary marriages.
Children, maintenance and interim relief when divorcing a customary marriage
Where there are minor children, the Children’s Act 38 of 2005 governs the substance of what the court decides. Section 9 provides that in all matters concerning the care, protection and well-being of a child, the standard that the child’s best interest is of paramount importance must be applied. Section 18(2) sets out the parental responsibilities and rights at issue: to care for the child, to maintain contact with the child, to act as guardian, and to contribute to the child’s maintenance.
Care, contact and guardianship are distinct. A parent may hold care and contact without holding guardianship, and the orders sought should be framed accordingly. A parenting plan is often the practical vehicle for regulating day-to-day arrangements, and it can be made an order of court as part of the divorce.
Maintenance divides into two claims that should not be run together. Child maintenance is the child’s right, assessed against the child’s reasonable needs and each parent’s means, with the Maintenance Act 99 of 1998 providing the enforcement framework. Spousal maintenance is a separate claim, assessed under section 7(2) of the Divorce Act against factors including the existing and prospective means of each party, their earning capacities, financial needs and obligations, their ages, the duration of the marriage, the standard of living before the divorce, and their conduct so far as it is relevant to the breakdown. An order for spousal maintenance is not automatic and depends on the facts.
Pension interests are frequently the largest asset in these matters and are frequently overlooked. Section 7(7) of the Divorce Act deems the pension interest of a party to be part of that party’s assets in determining the patrimonial benefits to which the parties may be entitled, subject to the qualifications in that subsection. Section 7(8) allows the court granting the decree to order that the assigned portion be paid by the fund to the other party, and to direct the registrar to notify the fund so that an endorsement is made in its records. The claim must be pleaded properly and the fund and the interest identified correctly.
Interim relief is time-sensitive. Where a spouse needs financial support, interim arrangements for a child, or a contribution towards legal costs while the divorce is pending, the application is brought under Rule 43 of the Uniform Rules of Court in the High Court, or Rule 58 of the Magistrates’ Courts Rules in the magistrates’ courts. Rule 43(1) covers maintenance pendente lite, a contribution towards the costs of the matrimonial action, interim care of any child and interim contact with any child. The respondent must deliver a sworn reply within 10 days. Relief of this kind must be sought while the proceedings are underway. It is not available once the decree has been granted.
What to bring to your first consultation
The quality of a first consultation about divorcing a customary marriage depends almost entirely on what you bring to it:
- Identity documents of both spouses, and in a polygynous customary marriage, the identity details of all spouses.
- The customary marriage certificate or proof of registration under section 4 of the RCMA. If the marriage was not registered, that does not mean it is invalid.
- Lobolo negotiation records or agreements, receipts or proof of payment, photographs, invitations and correspondence showing that the customary law requirements were met.
- Details of witnesses, particularly family members or elders who participated in the lobolo negotiations, the handing over or integration of the bride, or other customary ceremonies. They may be required to give evidence if validity is disputed.
- Any antenuptial contract, or any court-approved contract regulating the matrimonial property system.
- Financial records, including assets, liabilities, income, bank accounts, pensions, businesses and immovable property.
- Information about any minor children, including current arrangements, maintenance payments and children’s expenses.
- Any relevant court orders or agreements, including maintenance orders, protection orders and parenting plans.
Bring what you have, even if it is incomplete. Gaps can be addressed, and an early assessment is usually cheaper than a late correction. Book an initial divorce consultation with our family law team.
Common mistakes and warning signs
The mistakes that cause the most damage are consistent:
- Believing that returning lobolo ends the marriage. Customary family processes may carry significant cultural weight, but only a court can dissolve the marriage under Section 8 of the RCMA.
- Believing that an unregistered customary marriage is not legally valid. A marriage that complies with the requirements of the Act may be valid even though it was never registered.
- Entering into another customary marriage without first obtaining a divorce. A valid customary marriage continues until it is dissolved by a court or ends on the death of a spouse.
- Assuming the property regime is whatever the spouses agreed informally. The proprietary consequences of a customary marriage are determined by law, not by how the parties chose to manage their money.
- Waiting until a spouse dies to resolve questions about validity. These disputes often surface during the administration of a deceased estate, when proof is considerably harder.
- Delaying advice in a polygynous customary marriage. Joinder and proprietary rights become far more complicated once proceedings have started.
Certain facts are warning signs that the regime is not what you assumed. Your marriage was concluded before 15 November 2000 and you are unsure whether later legal developments changed the proprietary consequences. You believe the marriage is out of community of property simply because you and your spouse kept your assets separate. You are in a polygynous marriage and are unaware of any court-approved contract regulating the property system. You signed an antenuptial contract but cannot confirm that it was properly executed, registered and lodged at the Deeds Office.
When to involve attorneys in a customary marriage divorce
Certain circumstances make a customary marriage divorce urgent:
- Dissipation of assets. A spouse is selling, hiding or transferring property to defeat the other spouse’s proprietary claims.
- Threats regarding children. A parent threatens to remove or wrongfully retain a child, particularly where there is a risk of relocation without agreement or a court order.
- A further customary marriage concluded during the divorce. This may affect the property regime and the rights of an existing wife.
- Uncertainty about validity. One party alleges that an existing civil marriage prevented a later customary marriage from being valid, or competing marriages give rise to conflicting claims.
A co-wife facing proceedings that may affect her interests should take advice early. She should confirm that she has been properly joined and given an opportunity to be heard, and obtain advice on whether the proposed division protects her proprietary interests, including her joint and equal ownership rights where section 7(1) applies, and on whether pension interests and maintenance claims have been properly identified.
Customary law is context-specific. The correct answer in one family or set of facts is not necessarily the correct answer in another. General information is a starting point when divorcing a customary marriage, and it is not a substitute for advice on your own circumstances. The Department of Justice and Constitutional Development publishes general information on maintenance and court processes for members of the public.
Frequently Asked Questions
Do I have to return lobolo to get divorced?
No. The RCMA does not make the return of lobolo a requirement for a decree of divorce, and returning lobolo does not dissolve the marriage. Section 8 of the RCMA requires a court order. A dispute about lobolo is a separate matter of customary law between the families.
What if my customary marriage was never registered under Section 4?
Section 4(9) of the RCMA provides that failure to register a customary marriage does not affect its validity. A certificate is useful because section 4(8) makes it prima facie proof of the existence of the marriage. Without one, the marriage can be proved by other evidence, including lobolo records and the testimony of family members and elders.
Which court hears a customary marriage divorce?
Section 1 of the RCMA defines the competent court as a High Court or a regional division court under section 29(1B) of the Magistrates’ Courts Act 32 of 1944. Section 29(1B)(a) expressly empowers the regional court to hear any matter and grant any order provided for in the RCMA. Complex matters, including substantial proprietary disputes and challenges to validity, are often taken to the High Court.
Must all the wives be joined in a polygynous customary marriage divorce?
Every wife whose legal rights or proprietary interests may be affected should be joined and given notice and an opportunity to be heard before an order affecting her is granted. Section 8(4)(c) of the RCMA allows the court to order that any person with a sufficient interest be joined. Failing to join an affected wife delays the matter and can expose the order to challenge.
How long does divorcing a customary marriage take?
An uncontested matter can be finalised within a few months, depending on the court roll and whether the documentation is in order. A contested matter may take a year or longer. The most common cause of delay is a dispute about whether the marriage exists at all, because the court must determine that before it can consider the irretrievable breakdown of the marriage.
Can I claim part of my spouse’s pension?
Section 7(7) of the Divorce Act deems a party’s pension interest to be part of that party’s assets when the court determines the patrimonial benefits to which the parties may be entitled, subject to the qualifications in that subsection. Section 7(8) allows the court to order the fund to pay the assigned portion to the other party and to direct that the fund’s records be endorsed. Whether a claim succeeds, and in what amount, depends on the property regime and how the claim is pleaded.
Can I marry someone else customarily while my divorce is pending?
A valid customary marriage subsists until a court dissolves it or a spouse dies. Concluding a further customary marriage before the decree is granted creates complex disputes about validity and property. Where a husband wishes to enter into a further customary marriage after 15 November 2000, section 7(6) of the RCMA requires him to apply to the court to approve a written contract regulating the future matrimonial property system of his marriages, with the existing and prospective spouses joined under section 7(8).
Speak to our family law team
Vermeulen Attorneys acts for spouses divorcing a customary marriage, including contested matters involving disputed validity, a polygynous customary marriage, and substantial proprietary claims. Atlegang Mmesi and the family law team can assess your position, identify the regime that governs your marriage, and advise on the appropriate forum and the relief available to you.
Contact us to arrange an initial divorce consultation.
