Know your rights when it comes to customary marriage and divorce

In South Africa, the definition of a customary marriage is one that is “negotiated, celebrated or concluded according to any of the systems of indigenous African customary law which exist in our country”. These types of marriages come with their own unique set of characteristics and laws.

Last year, the landmark Ramuhovhi ruling catalysed a proposed amendment this year to the Recognition of Customary Marriages Act (RCMA). In essence, a polygamous father passed away, leaving his share of the estate to all his wives and children. But only one wife was married in community of property; the rest were married by customary law, which caused contention over the inheritance of the +R10-million estate. This highlighted the Act’s discrimination against women in customary marriages. The amendment changes this: Now all spouses in a customary marriage – polygamous or not – have joint and equal ownership over marital property.

But it’s still complicated. There’s another case currently ongoing in which a woman claims she’s owed over R63k a month in maintenance from her customary law husband. But said husband is refusing to acknowledge that the marriage took place, stating that lobola payments were not finalised and the marriage wasn’t celebrated in accordance with customary law.

Customary marriages increased by almost 15% in 2016 and with the rate of divorce also on the rise – just under 50% of couples will divorce before their 10th wedding anniversaries – it’s vital that all parties know their rights when it comes to divorce.

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Here’s what women need to know…

What makes a customary marriage legal?

For a partnership to be recognised as valid under customary law, the following requirements must be met:

  1. Both parties entering the marriage must be over 18.
  2. Both must have given consent to be married under customary law. In a polygamous marriage, the other wife (wives) also need to give consent to the marriage.
  3. The marriage needs to be negotiated, celebrated and entered into according to the parties’ relevant traditions and customs. Paying lobola or discussing the payment assists in proving the marriage was negotiated in accordance with custom. But paying lobola is not a legal requirement for a customary marriage and it doesn’t alone stand as grounds for a relationship to be recognised by customary law.
  4. The marriage should be registered with the Department of Home Affairs so that the relationships’ status is unambiguous.

How does it work in terms of community of property?

The new RCMA amendment gives equal rights to spouses in respect of all ‘household property’ and ‘family’. These rights must be exercised by all married partners jointly, in the best interests of the whole family.

In a nutshell: All customary marriages are in community of property unless an ante-nuptial agreement explicitly states otherwise.

How does one get divorced after being married by customary law?

There are no benefits to separating from an estate planning point of view. Separation carries no legal weight – you are still married and you don’t have the benefit of legal rules to regulate the ramifications of the separation. The only way to divorce is through a court of law with a signed settlement agreement made an Order of Court.

What are the things women need to know about seeking a divorce from a customary marriage?

GroundUp’s investigation into divorce from a customary marriage made it clear that there are still problematic misunderstandings, namely:

  • Some people are unaware that the default regime is in community of property so don’t seek their equal share
  • Sometimes the perception is that assets are owned by the husband and his family
  • There can be a damaging idea that the spouse who leaves is deserting the marriage – even in the case of abuse

The best advice is for a woman to consult an attorney. Here are some things to consider:

  • Consult an attorney who specialises in matrimonial law.  The attorney must be a member in good standing of the Law Society (LSSA).
  • Get your own lawyer: do not use your husband’s as this lawyer will probably take his side and be conflicted.
  • Get everything agreed in writing and signed by both parties.
  • In the interim, before the divorce is final and to avoid hardship, you can sue the spouse for interim maintenance and a contribution to your legal costs.
  • If your lawyer seems unsure, fire him or her and get a better one.
  • Always get personal references from friends or colleagues, for an attorney.
  • Get an estimation of legal fees and if you pay a deposit, get a receipt.
  • If the attorney has ‘right of appearance’ in the High Court you do not need to have an advocate as well – but that depends on how complicated the matter gets.
  • If you are indigent, try a legal aid clinic at a local university. In some cases, women do conduct their own divorce with the help of the Registrar of the High Court.

Article by David Thomson, Senior Legal Adviser for Sanlam Trust