Divorce in customary marriages.

In the aftermath of the passing away of motswako Hip-Hop HHP, there has been a lot of confusion on customary marriages. This article aims to clarify this based on the Recognition of Customary Marriages Act 120 of 1998 and case law.
1. Requirements for a customary marriage
(a) Capacity to enter into a customary marriage (this means the person concerned must have the right age -18 years and above)
(b) Consent of the bridegroom and the bride.
( c)“The marriage must be negotiated and entered into or celebrated in accordance with customary law”. This will include payment of ilobolo and the handing over of the bride to the family of the groom (according to case law see Mkabe vs Home Affairs and others (2014). The requirements mentioned herein are in s3 (1) paragraph (a) and (b) of the Act.
2. Requirements for divorce in customary marriages

i)The Act has a specific section for a divorce of customary marriages. The section states as follows

8. ( I )” 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”
This is even in customary marriages that are not registered, as long as the marriage complies with the requirements mentioned above. What is the meaning of irretrievable breakdown of the marriage?

ii) Meaning of irretrievable breakdown of a marriage.
The Divorce Act 70 of 1979 states as follows

S4(1) (l) “A court may grant a decree of divorce on the ground of irretrievable breakdown of a marriage if it is satisfied that the marriage relationship between the parties has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them”

The next subsection lays down the examples of irretrievable breakdown
(2) Subject to the ‘provisions of subsection (1), and without excluding any facts or circumstances which may be indicative of · the irretrievable break-down of a marriage, the court may accept evidence-
(a) that the parties have not lived together as husband and wife for a continuous period of at least one year immediately prior to the date of the· institution of the divorce action;
(b) that the defendant has committed adultery and that the plaintiff finds it irreconcilable with a continued marriage relationship; or
(c) that the defendant has in terms of a sentence of a court been declared a habitual criminal and is undergoing imprisonment as a result of such sentence, as proof of the irretrievable break-down of a marriage

3. Case law
In the case of Southon, v Moropane 2012 case in South Gauteng High Court the plaintiff wanted the court to declare that she was in a customary marriage with the defendant and she was seeking maintenance from the defendant. The defendant stated that the R6000 he paid was for “pula molomo” and this was not for marriage. The defendant sent a delegation to the family of the plaintiff they paid R6000 as part of ilobolo. They brought a blanket to the plaintiff as a gift. The family of the plaintiff slaughtered a sheep during the day for celebrations in Seshego. The plaintiff was later taken to the family of the defendant in Pretoria on the same day on April 17, 2002.

The court decided that there was a marriage (customary) based on the Act but that she failed to prove that the defendant must pay maintenance for her. The court did, however, decide that there is a divorce in the marriage. The court further stated that the joint estate should be divided. The defendant took the matter on appeal in the Supreme Court of Appeal in 2014 and his appeal was dismissed
.
Conclusion

The Recognition of Customary Marriages Act stipulates how the validity of customary marriages is determined as stated above(please see an article by Donda Attorneys on this on our Facebook page). If the requirements of a marriage are met as stated then it follows that section eight of the Act will apply as stated and please note the case law that was discussed. The Act and case law is a codification of customary law that leads to confusion unless the current law changes know your rights. See our views on https://www.iol.co.za/the-star/news/customarymarriages-dont-just-separate-make-sure-you-divorce-17773885

Disclaimer: This is not legal advice it is a legal opinion by the attorney below, it’s advisable you consult an attorney of your choice directly.

Article was written by
Melusi Xulu –Managing Director at Donda Attorneys
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