Customary law and divorce – know your rights

David Thomson, senior legal adviser at Sanlam, breaks down all you need to know about customary law so you can make an informed decision.

What makes a customary marriage legal?

For a partnership to be recognised as valid under customary law, the following requirements must be met:

·      Both parties entering the marriage must be over 18.

·      Both must have given consent to be married under customary law. In a polygamous marriage, the other wife/wives need to give consent to the marriage.

·      The marriage needs to be negotiated, celebrated and entered into according to the parties’ relevant traditions and customs. Paying lobola or discussing the payment assists in proving the marriage was negotiated in accordance with custom. But paying lobola is not a legal requirement for a customary marriage and it doesn’t alone stand as grounds for a relationship to be recognised by customary law.

·      The marriage should be registered with the Department of Home Affairs so the relationship’s status is unambiguous.

How does it work in terms of community of property?

The new Recognition of Customary Marriages Act (RCMA) amendment gives equal rights to spouses in respect of all ‘household property’ and ‘family’. These rights must be enjoyed by all married partners in the best interests of the whole family.

In a nutshell, all customary marriages are in community of property unless an ante-nuptial agreement explicitly states otherwise.

How does one get divorced after being married by customary law?

There are no benefits to separating from an estate planning point of view. Separation carries no legal weight – you are still married and you don’t have the benefit of legal rules to regulate the ramifications of the separation. The only way to divorce is through a court with a signed settlement agreement made by an Order of Court.

What are the things women need to know about seeking a divorce from a customary marriage?

GroundUp’s investigation into divorce from a customary marriage made it clear that there are still problematic misunderstandings, namely:

·               Some people are unaware that the default regime is in community of property so they don’t seek their equal share.

·               Sometimes the perception is that assets are solely owned by the husband and his family.

·               There can be a damaging idea that the spouse who leaves is deserting the marriage – even in the case of abuse.

So if you’re looking into getting married the traditional or customary way, make sure you consult a lawyer.