Customary Marriage and Divorce in South Africa

Customary marriage divorce in South Africa is a court process. A valid customary marriage does not simply end because the spouses separate, stop living together, or agree informally that the relationship is over. If the marriage is legally valid, it must be dissolved by a court decree of divorce.

This guide explains validity, registration, property consequences, children and the practical steps where a customary marriage breaks down.

What is a customary marriage?

A customary marriage is a marriage concluded according to customary law. The Recognition of Customary Marriages Act recognises customary marriages that meet the legal requirements. For a customary marriage entered into after the Act came into operation, the spouses must generally both be over 18, both consent to the marriage, and the marriage must be negotiated and entered into or celebrated according to customary law.

The Department of Justice has a public guide to getting married under customary law. The Recognition of Customary Marriages Act is also available online.

Does an unregistered customary marriage count?

Registration is important because it provides proof. However, section 4(9) of the Recognition of Customary Marriages Act provides that failure to register a customary marriage does not affect its validity. A divorce can therefore be brought in respect of an unregistered customary marriage, provided the elements of section 3(1) are established.

In practice, lack of registration can still create serious proof problems. This becomes important in divorce, inheritance, property disputes, maintenance and disputes about whether a marriage existed at all.

Can a customary marriage be ended without divorce?

No. If the customary marriage is valid, it must be dissolved by a court. Separation, family discussions, lobola disputes, or informal agreement do not themselves create a divorce.

The court must consider the breakdown of the marriage and the consequences of divorce, including property, maintenance and children where relevant.

Property consequences of customary marriage divorce

Property consequences depend on the facts, the date of the marriage, whether the marriage is monogamous or polygynous, and whether there is a valid antenuptial or court-approved arrangement. Many customary marriages create serious property questions because spouses may not have understood the default position when they married.

Before signing any settlement agreement, get advice on whether the marriage is in community of property, out of community of property, subject to accrual, or affected by a court-approved arrangement. A mistake here can be expensive and difficult to undo.

For deeper background on the legal framework, see SDLAW’s guide to the Recognition of Customary Marriages Act.

What about children?

Where there are minor or dependent children, the court must be satisfied that proper arrangements are made for their welfare. This includes care, contact, guardianship, maintenance, schooling, medical care and the best interests of the child.

The fact that a marriage is customary does not mean children’s interests are decided by custom alone. The court’s focus is the best interests of the child.

Common disputes in customary marriage divorce

• One spouse denies that a valid customary marriage existed.
• The marriage was never registered.
• Families disagree about whether customary requirements were completed.
• There is a dispute about lobola and whether it proves the marriage.
• One spouse entered another marriage without properly ending the first.
• The parties disagree about whether the marriage is in community of property.
• There are disputes about children, maintenance or the home.

How to prepare for divorce from a customary marriage

Gather the documents and evidence that show the existence and nature of the marriage. This may include registration documents, lobola correspondence, family communications, photographs, affidavits, identity documents, children’s birth certificates, proof of shared residence, property documents and financial records.

Then get advice before starting or defending the divorce. The first legal question is often not “how do we divorce?” but “what exactly is the legal status of this marriage?”

When to contact an attorney

Use an attorney where the marriage is unregistered, the existence of the marriage is disputed, there are children, there is immovable property, there are multiple spouses, or one spouse has entered another marriage.

You can read DACT’s broader guide to divorce in South Africa. For advice on a specific customary marriage divorce, contact Simon Dippenaar & Associates.

Frequently asked questions about customary marriage divorce

This article is general information, not legal advice. Customary marriage disputes are fact-sensitive and should be assessed on the documents and evidence.

Simon Dippenaar

Founder & Managing Partner, SD Law

Attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

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