An unregistered customary marriage in South Africa is a customary marriage that has not been registered with the Department of Home Affairs. The Recognition of Customary Marriages Act 120 of 1998 gives the parties three years to register the marriage, and the marriage is treated as a civil marriage for most purposes. The divorce of an unregistered customary marriage is possible, but the parties should register the marriage first, or prove the existence of the marriage by other means.
This page explains the legal options for the divorce of an unregistered customary marriage, the procedural steps, and the practical process to follow. If you need help with a divorce matter, our Sandton-based Family Law team can assist.
What an unregistered customary marriage is
An unregistered customary marriage is a customary marriage that has not been registered with the Department of Home Affairs. The Recognition of Customary Marriages Act 120 of 1998 gives the parties three years to register the marriage, and the marriage is treated as a civil marriage for most purposes.
The Act allows the parties to register the marriage at the Department of Home Affairs, and the registration gives the parties the same status as a civil marriage. The registration is free, and the parties can register the marriage at any time after the marriage.
The legal options for divorce
The legal options for the divorce of an unregistered customary marriage are listed below in the order they usually appear in practice.
- Register the marriage at the Department of Home Affairs, and then apply for the divorce under the Divorce Act 70 of 1979.
- Prove the existence of the marriage by other means, including the lobola agreement, the family arrangements, and the witnesses, and then apply for the divorce.
- Apply for the divorce without registering the marriage, and rely on the customary law to recognise the marriage.
- Apply for a declaratory order from the court to confirm the existence of the marriage, and then apply for the divorce.
How to register the marriage
The marriage can be registered at the Department of Home Affairs. The parties must complete the registration form, attach the lobola agreement, and submit the form to the Department. The Department will register the marriage and issue a marriage certificate.
The registration is free, and the parties can register the marriage at any time after the marriage. The registration is particularly important where the parties intend to divorce, since the registration gives the parties the same status as a civil marriage for the purposes of the divorce.
Proving the marriage by other means
Where the marriage is not registered, the parties can prove the marriage by other means, including the lobola agreement, the family arrangements, the witnesses, and the conduct of the parties. The court will weigh the evidence and decide whether the marriage existed.
The most common evidence of the marriage is the lobola agreement, which is a written or verbal agreement between the families. The court will consider the lobola agreement, especially where the families have agreed to the lobola and the bride price has been paid.
What happens at the hearing
The hearing is held at the court, and the parties attend. The court hears the application, considers the evidence of the marriage, 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 registration. The registration of the marriage is a key part of the divorce, and the parties should register the marriage before applying for the divorce.
- Failing to prove the marriage. Where the marriage is not registered, the parties must prove the marriage by other means, and the court will weigh the evidence.
- Skipping the customary law. The court must consider the customary law and the customs of the parties, and the application must reflect those customs.
- 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 legal options for the divorce of an unregistered customary marriage in South Africa?
The legal options for the divorce of an unregistered customary marriage are to register the marriage at the Department of Home Affairs, to prove the marriage by other means, to apply for the divorce without registering the marriage, or to apply for a declaratory order from the court to confirm the existence of the marriage.
What is an unregistered customary marriage?
An unregistered customary marriage is a customary marriage that has not been registered with the Department of Home Affairs. The Recognition of Customary Marriages Act 120 of 1998 gives the parties three years to register the marriage, and the marriage is treated as a civil marriage for most purposes.
How do you register a customary marriage?
The marriage can be registered at the Department of Home Affairs. The parties must complete the registration form, attach the lobola agreement, and submit the form to the Department. The Department will register the marriage and issue a marriage certificate.
Can you divorce an unregistered customary marriage in South Africa?
Yes. The divorce of an unregistered customary marriage is possible, but the parties should register the marriage first, or prove the existence of the marriage by other means. The court will weigh the evidence of the marriage and decide whether the marriage existed.
How do you prove an unregistered customary marriage?
The parties can prove the marriage by other means, including the lobola agreement, the family arrangements, the witnesses, and the conduct of the parties. The court will weigh the evidence and decide whether the marriage existed.
What is the difference between a registered and unregistered customary marriage?
A registered customary marriage is registered with the Department of Home Affairs and has the same status as a civil marriage. An unregistered customary marriage is not registered with the Department of Home Affairs, and the parties must prove the marriage by other means.
Do I need a lawyer for the divorce of an unregistered customary marriage?
A lawyer is not required for an uncontested divorce, but it is strongly recommended. The unregistered customary marriage divorce is a complex legal process, 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 legal options for the divorce of an unregistered customary marriage 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. Divorce laws in South Africa can be complex due to the interaction of multiple legal frameworks. It is essential to understand how these laws apply to both registered and unregistered marriages. Seeking guidance from a legal professional can help clarify any specific questions related to your situation.