Divorcing a Customary Marriage Spouse Without Home Affairs Registration in South Africa
Divorce can be a complex and emotionally charged process, especially when it involves a customary marriage. However, South African law provides a clear path for dissolving such marriages, even if they are not registered with Home Affairs. This article will guide you through the essential aspects of customary marriage, the divorce process, and the division of assets.
What is a Customary Marriage?
The Recognition of Customary Marriages Act of 1998 defines such marriages as a marriage that is negotiated, celebrated, or concluded according to any of the systems of indigenous African customary law which exist in South Africa. These marriages are recognised under the Recognition of Customary Marriages Act of 1998, which ensures that they have the same legal standing as civil marriages.
Requirements for a Valid Customary Marriage:
1. Consent: Both parties must consent to the marriage.
2. Age: Both parties must be at least 18 years old.
3. Customs and Traditions: The marriage must be negotiated and entered into according to the customs and traditions of the community.
Divorcing in a Customary Marriage
Contrary to popular belief, the Recognition of Customary Marriages Act does not require the marriage to be registered to be valid. This means that parties can divorce even if their customary marriage is not registered with Home Affairs.
What is a Customary Marriage Divorce?
A customary marriage divorce follows similar principles to a civil marriage divorce. The process involves: 1. Filing for Divorce or issuing summons: One or both parties must file for divorce.
2. Grounds for Divorce: The marriage must have broken down irretrievably.
Importance of Dissolving Customary Marriages Through Divorce
For parties who have concluded customary marriages and have since separated, it is crucial to formally dissolve their marriage through divorce. This is important for several reasons:
Estate Planning: Without a formal divorce, the parties are still legally married, which can complicate matters of inheritance and estate planning. Ensuring that the marriage is dissolved can prevent future legal disputes over the deceased's estate.
Entering Into Further Marriages: South African law prohibits individuals from being legally married to more than one person at a time unless under specific circumstances like polygamous customary marriages. A formal divorce is necessary to ensure that any subsequent marriage is legally recognised and valid.
Division of Assets in Customary Marriage Divorce
The division of assets depends on whether the marriage was in community of property or out of community of property.
In Community of Property
If the marriage is in community of property, all assets and liabilities are shared equally. Upon divorce, the court will divide the joint estate equally between the parties.
Out of Community of Property
If the marriage is out of community of property, each party retains their separate assets and liabilities. The division will be based on the terms agreed upon during the marriage negotiations or any subsequent agreements.
Important Documents for Divorce Proceedings
While Home Affairs registration is not required, some Magistrate’s Courts may request:
- Lobola Letter: Evidence of the traditional bride price agreement.
- Marriage Certificate: Proof of the customary marriage. However, the High Court does not require a marriage certificate or a lobola letters to issue summons for divorce proceedings to commence.
Our law firm specialises in customary marriage divorces and is dedicated to providing expert legal assistance. We understand the nuances of customary law and the Recognition of Customary Marriages Act, ensuring a smooth and fair divorce process. Whether your marriage is in or out of community of property, registered or unregistered, we are here to guide you every step of the way.
Contact Us : We can be reached on 015 023 0013 or 079 809 1300. Email us on info@mjmattorneys.co.za