Customary marriages govern majority of marriages in South Africa. It is common that customary law in its own right is not general across different groups of people who practice it at any given time. This has resulted with customary law being fluid and quite challenging to enforce or keep track of, that is, it changes every so often and that may lead to confusion when it comes to its application. This type of customary law is called the living customary law, today, the customary practice may be this and tomorrow completely different.

In this article, we intend to surmise the legal position on how customary law is applied when it comes to divorces.

CUSTOMS ARE DIFFERENT

Customary practices are different and often unique to a specific group at a specific time. Although there may be similar elements of the practices or how things are customarily done in different customary groups and practices, the practices are generally never exactly the same across the spectrum of its practitioners.

To illustrate: in the Zulu culture, there is a payment of lobola, gifts exchanged and a series of ceremonies which have to take place to conclude a culturally recognized marriage. On the other hand, the Basotho culture does things differently. They also engage in the mahadi (“lobola”) negotiations, such negotiations may take place in one sitting or a series of them, thereafter, there generally is a celebration at the brides place after the successful negotiations of the  mahadi, thereafter,  the bride is delivered to the grooms family, the later will also hold a ceremony, significantly marked by the slaughtering of a sheep for the bride, welcoming her to the family and giving her a new name.

The above only illustrates that although it is different cultures, the practices have differences and similarities. The practice becomes more challenging when two people from different ethnic groups get married to each other, for instance, a Mosotho getting married to a Zulu person. It blurs the lines as to which custom is to be used, which custom will be the ground of departure in the recognition of their marriage.

It is important that we get a proper legal understanding on what one should do when they are of the understanding that they concluded a customary marriage. Simply letting things be and not following the law has dire legal consequences which may cost you or your loved ones.

THE OFFICIAL CUSTOMARY LAW

The Legislature made a law that governs customary marriages in South Africa. That Act of parliament is called the Recognition of Customary marriages Act 120 of 1998.

The purpose of this law is to make provision for the recognition of customary marriages;

• to specify the requirements for a valid customary marriage;
• to regulate the registration of customary marriages;
• to provide for the equal status and capacity of spouses in customary marriages;
• to regulate the proprietary consequences of customary marriages and the capacity of spouses of such marriages;
• to regulate the dissolution of customary marriages;
• to provide for the making of regulations; to repeal certain provisions of certain laws;
• to provide for matters connected therewith.

The legal requirements for legally valid customary marriage, over and above different customs are the following:

• Both prospective spouses must be above the age of 18 years; and
• They must both intend to be customarily marriage and consent thereto; and
• The marriage must be negotiated and entered into or celebrated in accordance with customary law.

The legal requirements are clear and customary marriages are automatically in community of property unless there is an antenuptial contract concluded prior, and once such a marriage has been concluded, only a court of law can dissolve it by issuing a decree of divorce. This position persists even if the marriage was not registered at the department of Home Affairs.

It often happens that, for some or other reason, people attempt to delegitimise their marriage by making issue of strict compliance with the negotiation, entering and celebration in accordance with customary law. In practice, it is appreciated that, such is done because most people are looking for a loophole to avoid the consequences of dissolving a marriage in community of property.

Whether a person may subjectively claim that their marriage did not comply with the law and as such they do not recognize it as a valid marriage, it is sound to consult a knowledgeable divorce lawyer for legal advice suited to your unique facts and circumstances. It is never a good idea to just separate with your partner without engaging a lawyer and getting divorced, doing so will only worsen the situation, you in most; probability be postponing the issue, and that may prove detrimental.

At best, a lawyer may advise that you institute a claim for divorce, and at the least, to ensure that your best interests are secured, they may advise that you apply for a declaratory order regarding the legal status of your customary marriage.

CONCLUSION

If you are uncertain about the legal status of your customary marriage, avoid letting things be, seek legal advice and act as soon as possible to secure your best interests.

Reference List:

• Recognition of Customary marriages Act 120 of 1998.