The divorce of a customary marriage in South Africa is governed by the Recognition of Customary Marriages Act 120 of 1998, which gives the same status to customary marriages as to civil marriages. The divorce is dealt with by the Divorce Act 70 of 1979, but the court must consider customary law considerations and the customs of the parties when deciding the terms of the divorce. The most common requirements for a customary marriage divorce are the lobola negotiations, the family negotiations, and the registration of the divorce.
This page explains the requirements for a customary marriage divorce in South Africa, the procedural steps, and the customary marriage divorce process to follow. If you need help with a divorce matter, our Sandton-based Family Law team can assist.
What a customary marriage is
A customary marriage is a marriage that is entered into according to the customs and traditions of the parties. The Recognition of Customary Marriages Act 120 of 1998 gives the same status to customary marriages as to civil marriages, and the Act allows the parties to register the marriage at the Department of Home Affairs.
The Act recognises polygamous customary marriages entered into before the Act came into force, and the Act provides for the registration of the marriages and the rights of the spouses. The Act also provides for the divorce of customary marriages under the Divorce Act, incorporating customary marriage provisions.
How a customary marriage divorce works
A customary marriage divorce is a divorce of a customary marriage. The divorce is dealt with by the Divorce Act 70 of 1979, but the court must consider the customary law and the customs of the parties when deciding the terms of the divorce.
The court has the discretion to apply the customary law, and the parties can ask the court to consider the customs of the parties when dividing the assets and the maintenance. The most common customs are the negotiation of the lobola, the negotiation of the family arrangements, and the sharing of the assets.
Requirements for a customary marriage divorce
The customary marriage divorce requirements are listed below in the order they usually appear in the file.
- The marriage is registered with the Department of Home Affairs, or the parties can prove the marriage by other means.
- The parties have attempted to negotiate the divorce in line with the customs of the parties, including the negotiation of the lobola and the family arrangements.
- The parties have agreed to the terms of the divorce, including the division of the assets, the maintenance of the children, and the spousal maintenance.
- The marriage application process involves filing at the High Court or the regional magistrate’s court, depending on the nature of the marriage.
- The summons is served on the other party, and the matter is set down for hearing.
Documents needed
The documents needed for the application are listed below in the order they usually appear in the file.
- The summons for divorce, drafted by the attorney and signed by the plaintiff.
- The marriage certificate, or the proof of the marriage by other means.
- The ID documents of both parties, which the court uses to identify the parties.
- The settlement agreement, which sets out the terms of the divorce.
- The lobola agreement, where the parties have agreed to the lobola and the family arrangements.
What happens at the hearing
The hearing is held at the court, and the parties attend. The court hears the application, considers the settlement agreement, and where the parties have agreed to the terms, grants the decree of divorce.
The court will consider the customary law and the customs of the parties when deciding the terms of the divorce. The most common customs are the negotiation of the lobola, the negotiation of the family arrangements, and the sharing of the assets.
Common Mistakes to Avoid
These are the patterns that leave parties with the wrong outcome.
- Skipping the customary law. The court must consider the customary law and the customs of the parties, and the application must reflect those customs.
- Failing to negotiate the lobola. The lobola is a key part of the customary marriage, and the divorce must address the lobola and the family arrangements.
- Skipping the supporting documents. The court will not grant the divorce without the supporting documents.
- Letting the dispute escalate. The right path is to engage with the other party and apply for variation where appropriate.
- Quitting the process before the decree is granted. The divorce is not final until the decree is granted.
Frequently Asked Questions
What are the requirements for a customary marriage divorce in South Africa?
The requirements for a customary marriage divorce are the registration of the marriage, the negotiation of the lobola, the negotiation of the family arrangements, the agreement to the terms of the divorce, and the filing of the application at the court.
What is the Recognition of Customary Marriages Act?
The Recognition of Customary Marriages Act 120 of 1998 gives the same status to customary marriages as to civil marriages. The Act allows the parties to register the marriage at the Department of Home Affairs, and the Act provides for the divorce of customary marriages under the Divorce Act.
How is a customary marriage divorce decided in South Africa?
The divorce is dealt with by the Divorce Act 70 of 1979, but the court must consider the customary law and the customs of the parties when deciding the terms of the divorce. The court has the discretion to apply the customary law, and the parties can ask the court to consider the customs of the parties when dividing the assets and the maintenance.
Where do I file for a customary marriage divorce in South Africa?
The application is filed at the High Court or the regional magistrate’s court, depending on the nature of the marriage. The court in the district where the plaintiff resides, or where the parties last shared a residence, has jurisdiction.
Do I need to negotiate the lobola before a customary marriage divorce?
Yes. The lobola is a key part of the customary marriage, and the divorce must address the lobola and the family arrangements. The parties can negotiate the lobola through the family, and the court will consider the negotiations when deciding the terms of the divorce.
Can a customary marriage divorce be appealed in South Africa?
The decree can be appealed on a question of law, but the appeal has to be lodged within a reasonable time of the decree of divorce. The decree is final when granted, and the parties cannot appeal the decree on a question of fact.
Do I need a lawyer for a customary marriage divorce in South Africa?
A lawyer is not required for an uncontested divorce, but having legal representation is strongly recommended. The customary marriage divorce involves various customary marriage issues, and the parties should seek legal advice to ensure that their interests are protected.
Get help with your divorce. If you need help with a customary marriage divorce, Otrebski Attorneys’ Family Law team in Sandton can assist. As a 100% women-led firm with a 5-star Google rating, we focus on compassionate, practical legal solutions for families.
Disclaimer. This article provides general information about the requirements for a customary marriage divorce in South Africa. It is not legal advice and does not replace consultation with a qualified family attorney. The relevant law is set out in the Divorce Act 70 of 1979 and the Recognition of Customary Marriages Act 120 of 1998, both of which may be amended. Confirm the current position with the Department of Justice and Constitutional Development or speak to a family attorney before relying on anything in this article.