Dissolution of customary marriages has changed in form and in substance from what it used to be before the Recognition of Customary Marriages came into effect in 2000. Previously customary marriages were not legally recognised and families would meet and agree on the dissolution of the parties’ marriage without approaching court. Customary marriages had no legal consequences and so was their dissolution, this was then.
Now Section 8(1) of the Act provides that a customary marriage may only be dissolved by a competent court by a decree of divorce on the ground of the irretrievable breakdown of the marriage. This means that a customary marriage is placed on the same par with civil marriages. This alone indicates that mere separation will not exclude proprietary consequences of the marriage even though the marriage is not registered.
Many people who are married in accordance with customary regard separation and desertion as dissolution of marriage and therefore do not even bother to obtain a decree of divorce.
Parties often make a mistake of assuming that they can just go their separate ways without divorcing in a court of law just because their families have sit around the table and agree on the dissolution of the parties’ marriage and the refund of lobola by the bride’s family. Sometimes the parties incorrectly believe that it is not necessary to dissolve their marriage by a decree of divorce issued by court because their marriage was never registered or because the lobola amount was not paid in full or because there are some aspects of traditional ceremonies that were not complied with.
People should understand that it is not a requirement for validity of a customary marriage that the marriage should be registered or that the lobola should be paid in full. It is also not a requirement that all traditional ceremonies should be performed before the marriage is completed as this may be waived by expression or conduct. The problem in this regard is that there are many people who are receiving incorrect and differing legal advice from different spheres and this brings confusion to those who are dependent on others for legal advice.
Failure to dissolve a customary marriage has dire consequences in respect of subsequent marriages entered into with other persons as it renders them null and void, whether they are registered or not, even if the subsequent marriage is a registered civil marriage. Previously this would dissolve the customary marriage in question but that is no longer the case, a customary marriage will now remain valid but the new civil marriage will then be null and void.
Many couples usually enter into a civil marriage with third parties after separating from their customary marriage spouses. The position is that the further civil marriage will have no effect at all on the validity of the existing customary marriage.
Another consequence is that the marital regime that applies between the parties will continue to have effect and consequences as far as it relates to assets and pension funds accumulated by them before and during the marriage, even after their separation and during their subsequent marriages with other persons. This means that a house that is purchased by either of them will still form part of the joint estate between the estranged or separated spouses even though the property is not registered under their names together, this is due to the fact that the parties marital status will not on official documents reflect that they are married to each other as their marriage was never registered.
Should it happen that another spouse accumulate assets at a later stage, there exists a risk that the other estranged spouse may come back and lodge divorce. And both parties are entitled to a half share (50/50) of the joint estate regardless of whether they both contributed to the joint estate or not. There exist no defence to a prayer of divorce in these circumstances as the parties are still married to each other. If the other spouse is already a party to another marriage, he or she will have to remarry again after divorce as the subsequent marriage is invalid due to the fact that it was entered into during the existence of a customary marriage with another person.
Another consequence which is common in practice is that one of the spouses dies and the estranged customary spouse comes back to claim the entire deceased estate (all assets) by reason that she or he was still married to the deceased at the time of death.
Another prominent case ruling which comes in mind is that of Monyepao v Ledwaba and Others which was delivered by the Supreme Court of Appeal on 27 May 2020.
In this matter, Ms Ledwaba married Mr Phago in 2007 and they separate from each in February 2008 without divorcing. Ms Ledwaba moved on with her life and later married another man known as Mr Andrew Kwele in civil marriage on 26 November 2009. Mr Phago also moved on with his life and later went on to marry another woman known as Ms Monyepao on 17 July 2010. Mr Phago then died a wealthy man in 2012.
Ms Monyepao and Ms Ledwaba’s legal battles started in the Polokwane High Court, then to the full bench and ended up in the Supreme Court of Appeal. Ms Monyepao was arguing that Ms Ledwaba and Mr Phago’s customary marriage was dissolved when they separated in February 2008, or alternatively on 26 November 2009 when Ms Ledwaba marries Mr Andrew Kwele in terms of civil marriage and alternatively that Ms Ledwaba should forfeit her patrimonial benefits of her marriage to Mr Phago.
Ms Ledwaba admitted that she was married to Mr Andrew Kwele in terms of civil marriage but said that her civil marriage was null and void and did not have the effect of dissolving her customary marriage with the deceased. She further argued that her marriage to Mr Phago was never dissolved nor terminated until the death of Mr Phago.
The court stated that “for the marriage to have been brought to an end prior to the death of Mr Phago, it would have been necessary for a decree of divorce to have been issued in terms of s 8 of the Recognition of Customary Marriages Act 120 of 1998. Section 8(1) provides that a customary marriage may only be dissolved by a court by a decree of divorce on the ground of the irretrievable breakdown of the marriage”.
The Supreme Court of Appeal correctly held against Ms Ledwaba and ruled that Mr Phago was still married to Ms Monyapeo at the time of his death and that their marriage was never dissolved by their separation in February 2008 nor was it dissolved by the civil marriage which was entered into between Ms Monyapeo and the said Mr Andrew Kwele as this civil marriage was entered into during the subsistence of the customary marriage between Mr Phago and Ms Monyapeo and is thus null and void.
This simply shows the negative impact that failure to dissolve a customary marriage by divorce may have, especially on the new surviving spouse as the previous estranged customary spouse may come back and rightfully claims what belongs to her in terms of the law, simply because their customary marriage still exists until death unless if it has been dissolved by a decree of divorce. Also see Netshituka v Netshituka and Others [2011] ZASCA 120.
BEWARE OF THIS PITFALL