After the conclusion of the customary marriage, it is likely that the parties in a customary marriage do not register their marriage as it could take weeks, months, or years, to prepare for a civil marriage or civil union, which the couple hope to register at the Department of Home Affairs. For various reasons, things in life tend to change, leading to separations and both parties moving on with their lives. The dilemma that these parties find themselves in now, is how do they dissolve an unregistered customary marriage? Especially, when one spouse has concluded another customary marriage or civil marriage or civil union with a different person.
As most customary marriages are unregistered, the Department of Home Affairs is not able to detect when a customary marriage exists on their records between the parties of the marriage. As a result, the practice of spouses in customary marriages entering a civil marriage or civil union with another person persists and is prevalent. Although a spouse to a customary marriage may not enter a civil marriage or a civil union with somebody else, this still happens (s 3(2) of the Recognition of Customary Marriages Act 120 of 1998 (RCMA)). The unfortunate truth for spouses in such predicaments is that their civil marriages or civil unions are a nullity (see Netshituka v Netshituka and Others 2011 (5) SA 453 (SCA) at para 15).
It is trite law that a mere separation does not terminate a customary marriage. Only a court of law by a decree of divorce may terminate a customary marriage. However, before one dissolves a customary marriage through the court, there must be some prima facie proof that the customary marriage exists. Because most customary marriages are not registered, spouses tend to enter into a civil marriage with each other and after that register the civil marriage with the Department of Home Affairs to obtain a marriage certificate. Contrary to popular belief, a customary marriage may also be registered and has the same proprietary consequences applicable to other marriages (Recognition of Customary Marriages Amendment Act 1 of 2021).
The spouses of a customary marriage must ensure that their customary marriage is registered (s 4(1) of the RCMA). After the conclusion of the marriage, the spouses must ensure their marriage is registered within three months. However, failure or non-registration of the marriage does not affect its validity (s 4(9) of the RCMA).
To register their marriages, the spouses may approach an office of the Department of Home Affairs and provide the registering officer with the necessary information they may require making sure as to the existence of the marriage (s 4(2) of the RCMA). In areas with no Department Home Affairs offices, the spouses may approach a designated traditional leader to register a customary marriage.
‘The following people should present themselves at either a Home Affairs office or a traditional leader in order to register a customary marriage –
If the marriage officer is not satisfied that a customary marriage exists or there is a dispute between the parties as to whether a customary marriage exists, any one of the parties may approach the High Court to apply for a declaratory order to confirm that there is a customary marriage and directing the Department of Home Affairs to register such marriage.
Section 4(9) outlines that failure to register a customary marriage does not affect its validity. But, on the other hand, the question is, does the failure to register a customary marriage affects its dissolution?
A court may dissolve a customary marriage by a decree of divorce on the ground of irretrievable breakdown of the marriage (s 8(1) of the RCMA). It is also trite law that before a court dissolves the marriage; it must be prima facie proved that the marriage exists. The prima facie proof in most cases is the original marriage certificate that is handed to the court on the day of the divorce hearing and marked as ‘Exhibit A’ (s 12(4) of the Civil Unions Act).
The question now is: Does the customary marriage need to be registered first for purposes of obtaining prima facie proof before it gets dissolved? And what of the civil marriage or civil union with another spouse? The answer is no.
Parties in a customary marriage who want to enter into a civil marriage or civil union with a different person needs to ensure that their customary marriage has been terminated. This is possible by presenting a copy of the former spouse’s divorce order or death certificate to the marriage officer (s 8(4) of the Civil Union Act). Failure to do so, a marriage officer may proceed with the solemnisation and registration of the civil marriage or civil union (s 8(5) of the Civil Union Act), which will constitute a nullity.
Petrus Khumalo LLB (UP) is a legal practitioner at Mcira & Khumalo Inc in Pretoria.
This article was first published in De Rebus in 2021 (Nov) DR 12.
