A client asked: “I am married under customary law and would like to get divorced. How do I go about dissolving my customary marriage?”

Legal Framework

The dissolution of a customary marriage in South Africa is governed by the Recognition of Customary Marriages Act 120 of 1998 (RCMA). Section 8(1) of the RCMA provides the statutory basis for the dissolution process:

“A court may dissolve a customary marriage by a decree of divorce on the ground of irretrievable breakdown of the marriage.”  

Core Legal Principles

• A customary marriage – whether registered or unregistered – can only be dissolved by a competent court issuing a decree of divorce.
• Mere separation of the spouses or traditional/cultural acts do not legally dissolve a customary marriage; only a court order has this effect.
• The grounds for divorce are the same as for civil marriages: the marriage must have broken down irretrievably, meaning there is no reasonable prospect of restoring a normal marital relationship.
• The provisions of the Divorce Act 70 of 1979 apply to the dissolution of customary marriages, including matters of property division, maintenance, and custody of children.

Proof and Procedure

• Before a court will grant a divorce, there must be prima facie proof that a valid customary marriage exists. This can include a marriage certificate, evidence of lobola negotiations, witness statements, or photographs of customary rituals.
• The process for divorce in a customary marriage follows the same steps as for civil marriages: filing a summons, serving it on the other spouse, and presenting evidence before the court.
• Registration of a customary marriage is not a prerequisite for its validity or for its dissolution, but registration can simplify proof of the marriage.

Conclusion

To dissolve a customary marriage, you must approach a competent court (such as the High Court or Regional Divorce Court) and obtain a decree of divorce on the ground of irretrievable breakdown. The court will require proof of the existence of the marriage and will apply the same principles as in civil divorce proceedings.