Navigating The Process For Divorce In A Customary Marriage In South Africa
One of the great things about South Africa is our inclusivity, including our legal acceptance of traditional or Customary Marriages. In 1998 the South African Government passed the Recognition of Customary Marriages Act 120 of 1998. Among its many beneficial provisions were those pertaining to the process for divorce in customary marriages in South Africa.
The process for divorce in customary marriages follows the same procedure as in civil unions and marriages, including drafting a divorce summons, having the court issue it, getting a sheriff to deliver it to your spouse, and going before a Magistrate of the Court to prove an irretrievable breakdown within the marriage.
There are a couple of vital steps to remember when going through the process for divorce for a customary marriage, and the first step will depend on whether you have registered your marriage at the Department of Home Affairs. This registration will dictate whether or not you need to prove the marriage existed before you can start the process for divorce. Let’s look at what essential steps you should follow during the divorce process in a customary marriage.
The Process For Divorce In A Customary Marriage
Before we even get started on how to go about the divorce process, we should look at how you can register a customary marriage and the type of marriage it would fall under, as this will affect the process for divorce.
How Do You Register A Customary Marriage In South Africa?
A customary marriage is a marriage that is concluded following customary law. For a customary marriage to be valid, you would need to ensure that:
- The prospective spouses are over the age of 18 and both consent to the marriage;
- The wedding or ceremony must be negotiated and entered into according to customary law.
If either of the prospective spouses is under the age of 18, they will need the consent of their parents or legal guardians. If parental or guardian consent is unobtainable, Section 25 of the Marriages Act 25 of 1961 applies. It states that a Minister or any public service officer may give written permission for the marriage to occur as long as they deem it desirable and in the interest of both prospective spouses.
Like most other unions in South Africa, a couple married under traditional rites should still register their marriage at the Department of Home Affairs within three months of the customary marriage occurring. It is up to the spouses to ensure they register the marriage and get provided with a marriage certificate.
You do this by filling out the prescribed form for your customary marriage, including all necessary evidence that the marriage occurred and any additional information the marriage officer might require.
What Type Of Marriage Regime Is A Customary Marriage?
Typically a customary marriage falls under the in community of property marriage regime. Suppose you wish to avoid getting married in community of property. In that case, you can visit a lawyer and set up an antenuptial contract before the lobola negotiations and the marriage ceremony. There are two types of antenuptial contracts: with or without accrual.
You might think that because you are getting married following the rules set aside by customary law, you cannot get an antenuptial contract, but this is not the case. There are many benefits to getting an antenuptial contract besides those that might be relevant in divorce.
What Is The Process For Divorce In A Customary Marriage?
Now that we have a basic understanding of how you register a customary marriage and what type of marriage regime it typically falls under, we can start to discuss the process for divorce.
You might think that because you did not get married through a civil union or marriage, you do not need to get a divorce, but this is not the case. Like all marriages, there is the chance that spouses find that their union has reached a point of irretrievable breakdown, and they would prefer to live their lives separately. In this instance, it would be wise to start the process for divorce.
If you do not separate legally, you could still be liable for your ex-spouse’s debts, or in the event of death, your ex-spouse is entitled to some or all of your estate even if you remarried. At the same time, if you do not legally divorce, any new marriages, whether civil or customary, will be deemed null and void.
Before starting the process for divorce, you will need to find out whether or not you registered your customary marriage at the Department of Home affairs. If you still need to, you must apply to the court to register it. This application often requires you to submit documentation proving the marriage occurred, such as:
- Photographs that you took at the ceremony showing that you performed the ceremony in line with customary laws;
- A letter signed by all the delegates present at the lobola negotiations;
- Any witnesses that attended the wedding.
Once you have produced the required evidence to the court’s satisfaction, the court will order the Minister of Home Affairs to issue you a marriage certificate. You will need this certification before you start the process for divorce.
Once ready, you can start the divorce procedure per the Divorce Act 70 of 1979. If you have not signed an antenuptial contract, you will follow the divorce procedure for a community of property marriage regime.
- You will draft a divorce summons;
- Have a court official issue it on your behalf;
- They will then get a sheriff of the court to deliver it to your spouse;
- From there, you will get a court date;
- On your court date, you will go before a Magistrate of the Court to prove an irretrievable breakdown within the marriage.
In a nutshell, you will petition the court for a divorce decree. If the presiding officer is satisfied that your marriage has reached a point of irretrievable breakdown, they will grant your divorce.
No matter the type of divorce you are going through, in most cases, emotions run high during this time. The best action to take during the divorce process is to get an experienced divorce attorney. They can help you navigate the legalities surrounding your unique situation.
It is beneficial to have a divorce lawyer to guide you if you are going through the process for divorce in a customary marriage, as these marriages fall under the community of property marriage regime. With a divorce attorney by your side, you can rest assured that they will ensure that your marital estate gets divided appropriately between you and your ex-spouse.
Our Burnett Attorneys & Notaries team has years of experience with divorce cases. We strive to ensure that we provide tailor-made solutions for your unique situation. Please get in touch with us to set up a consultation or if you have any questions surrounding the process for divorce. We would gladly help you navigate through this challenging terrain.