FAMILY LAW

It is important to register a customary marriage in South Africa to afford legal protection to spouses, says EILEEN DEXTER

Before we address the topic at hand, it is important to understand the difference between a civil marriage and a customary marriage. Certain requirements exist that must be complied with in order to conclude a valid customary marriage, which requirements differ based on the type of customs prevalent in a specific tribe, for instance the handing over of a bride, paying “lobola” and the celebration of the marriage according to customs (which may include the slaughtering of an animal or having a chieftain present), while a civil marriage is seen as a marriage concluded between two parties before a marriage officer and witnesses, without the need to celebrate the marriage in a certain way or paying any form of “lobola”. A civil marriage will always be registered with the Department of Home Affairs whilst customary marriages seldom get registered with home affairs, although they should be for the parties’ best interest to be protected. But what does this mean when the parties want to part ways, especially for women in customary marriages?

The dilemma that parties in customary marriages find themselves in when the registration of the marriage does not take place, is how to approach the dissolution of an unregistered customary marriage. Especially, when one spouse has concluded another customary marriage or civil marriage or civil union with a different person at the time that the dissolution is to take place. What is the proprietary consequence, especially for women, as a customary marriage is deemed a marriage in community of property and loss, if no ante nuptial contract is concluded prior to the marriage taking place?

It is trite law that a simple separation does not terminate a customary marriage. As it is deemed a legal marriage if all of the requirements were met at the time that the marriage was concluded, only a court of law by a decree of divorce may terminate a customary marriage.

However, before one dissolves a customary marriage through the court, there must be some prima facie proof that the customary marriage exists. This can become problematic in a lot of instances, as it is hard to prove after a couple of years and the death of elders who negotiated the marriage terms, that the marriage took place. As such, how does one go about dissolving a marriage and enforce one’s rights in terms of the dissolution of same, if it is difficult to prove that one existed in the first place? It is for this reason and the fact that most customary marriages are not registered, that it has become a trend for, spouses to enter into a civil marriage and thereafter

to register the civil marriage with the Department of Home Affairs, to obtain a marriage certificate. This would then, however, mean that the spouses would be excluded from other rights that would have existed, had a customary marriage been entered into, for example polygamy. However, it is important to note that contrary to popular belief, a customary marriage may also be registered (and should in fact be registered) and has the same proprietary consequences applicable to other marriages, this is in terms of section 4 of the Recognition of Customary Marriages Act 120 of 1998, as amended (“the RCMA”). It is thus of utmost importance, that if spouses entered into a customary marriage, that they attend to the registration thereof at the Department of Home Affairs, so as to provide the necessary proof that it existed/exists.

A court may dissolve a customary marriage by a decree of divorce on the ground of irretrievable breakdown of the marriage (s 8(1) of the RCMA). It is also trite law that before a court dissolves the marriage; it must be prima facie proved that the marriage exists. The prima facie proof in most cases is the original marriage certifi cate. Should no such marriage certifi cate exist, the parties would need to fi nd other means to prove that it existed, which may be more diffi cult and onerous to prove.

Despite the evolution of the RCMA to cover the rights of women in customary marriages, there are still a lot of problems to overcome when it comes to seeking a customary divorce in South Africa. Not many women in customary marriages have knowledge about their rights and/or obligation in relation to the assets and liabilities of their joint estate. This, of course, creates a barrier to justice, and many women don’t seek legal recourse, which can severely impact their futures. The following are only a few of the aforementioned issues women in customary marriages must be educated on in the writer’s opinion:

Separating instead of getting a legal divorce It’s important for women to know that they will only have access to the division of assets if the customary marriage is dissolved in a court of law. A separation will not be of any benefi t to the wife, so it is imperative to register the customary marriage (or ensure that other proof of same is available) in order to confi rm that all legal rights are protected. There have also been cases where a husband, after a separation from an unregistered customary marriage, entered into a civil union giving his new spouse the legal right to all assets in the estate (this marriage would not be a legal marriage as he would be precluded from entering into a civil marriage due to the subsistence of the customary marriage, but it would be wise to seek legal advice in such an instance).

Not knowing they’re entitled to an equal share The default proprietary regime of a customary marriage is in community of property, which means that, upon divorce, the former spouses are entitled to an equal division of the joint estate, including all assets and liabilities. However, in some cases where a customary divorce is being heard in court, women often don’t know that they can seek an equal share in the estate but have already signed a settlement agreement that might not refl ect this position and is to their detriment. What is more concerning, however, is that most women also are oblivious to the fact that they are liable for all debts in the joint estate, whether they applied for and received the benefi t of any loans or not. This means that if the estate is not liquid at the time of the divorce, both husband and wife would be liable for an equal share of the debts existing at the time of dissolution.

Women are seen as “deserting” the marriage if they want a divorce In addition to the above two points, in some instances, the blame for the “divorce” is placed on the wife who is seen to simply want to leave and “desert” the marriage and family. Because of this, there is a common belief in customary law that the wife is only entitled to her personal belongings, when she leaves the marital home and nothing else. This is not the case. If the wife simply leaves the home, this does not constitute a legal divorce and will compromise her rights to her ownership of half of the estate, if a legal divorce is not sought and the estate is not dissolved properly. Some legal practitioners and courts aren’t clued-up on the law of customary marriages. Often, the South African justice system and practitioners do not keep up

to date with changes to the law, and this can result in the situation that even if a divorce is taken to court, the RCMA is not taken into consideration. This means that courts do not suffi ciently consider the circumstances that are relevant to how the matrimonial property will be shared. Ultimately, the equal division of a joint estate isn’t always guaranteed.

The only real way in which women will be protected is if they are educated in knowing their legal rights when entering into a customary marriage, or any kind of marriage for that matter. Knowledge, as they say, is power, and it is important for women not to feel powerless in these situations. It’s also then crucial to seek a lawyer who is up to date on South African customary law so that they can accurately and fairly represent you in the divorce.

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