Customary Marriage Divorce South Africa: You Can’t Just Walk Away

Think you are no longer married because you and your partner separated years ago?

Think again.

If you entered into a valid customary marriage in South Africa, simply breaking up, moving out, living apart or even agreeing with your families that the marriage is over does not legally end the marriage.

Under South African law, a customary marriage can only be dissolved by a court decree of divorce.

Here is what you need to know.

What Makes a Customary Marriage Valid?

The Recognition of Customary Marriages Act 120 of 1998 (RCMA) sets out the basic requirements for a customary marriage entered into after the Act came into operation.

Generally:

That last requirement is important.

Customary law is not a single checklist that applies identically to every community. The applicable customs can differ between communities, and courts look at the living customary law applicable to the parties.

So, while lobola negotiations and the handing over or integration of the bride may be important evidence in a particular marriage, you should not assume that every customary marriage is valid only if exactly the same traditional steps were followed.

A valid customary marriage is recognised as a marriage under South African law.

“But We Never Registered the Marriage!”

This is another common misunderstanding.

The law places a duty on spouses to ensure that their customary marriage is registered. For marriages concluded after the RCMA came into operation, the ordinary statutory period is three months, although extensions have been provided for.

But failure to register a customary marriage does not, by itself, make an otherwise valid customary marriage invalid.

In fact, section 4(9) of the RCMA expressly says that failure to register does not affect the validity of the marriage.

What About the 2026 Registration Deadline?

There was a special registration period running from 1 September 2024 to 31 August 2026 for certain unregistered customary marriages.

That special period has now ended.

However, the expiry of that special registration period does not mean that an otherwise valid customary marriage suddenly became invalid simply because it was not registered. Section 4(9) remains important: non-registration does not itself destroy the validity of the marriage.

If there is uncertainty about whether a customary marriage exists or whether it was validly concluded, registration and, where necessary, a court process may still be important for proving the marriage and resolving disputes.

You Cannot Simply “Walk Away”

This is the big one.

You cannot legally end a customary marriage simply by:

Under section 8(1) of the RCMA, a customary marriage may only be dissolved by a court by a decree of divorce, based on the irretrievable breakdown of the marriage.

The Supreme Court of Appeal confirmed this principle in Monyepao v Ledwaba and Others [2020] ZASCA 54.

In that case, the court found that there was no evidence that the first customary marriage had been dissolved. The fact that the spouses had separated did not bring the marriage to an end. A divorce decree was required.

So if you have been separated from your customary-law spouse for years, do not assume that you are legally single.

What About Your Property?

This is where things can become complicated.

For a monogamous customary marriage entered into after the RCMA came into operation, the general default position is that the marriage is in community of property and of profit and loss, unless the matrimonial property consequences have been excluded by a valid antenuptial contract.

The law dealing with matrimonial property in customary marriages has also been affected by important Constitutional Court decisions, particularly in relation to older customary marriages and polygamous marriages. So it is not safe to assume that every customary marriage has exactly the same property regime.

Being married in community of property generally means that the spouses have a joint estate, subject to the detailed rules governing that matrimonial property system.

The consequences can affect:

Pension interests can also have matrimonial-property consequences when a marriage is dissolved.

The important point: separating does not itself divide the matrimonial estate. The property consequences of the marriage must still be dealt with legally.

What If You Want to Marry Someone Else?

This is where failing to obtain a divorce can cause a serious legal problem.

Section 3(2) of the RCMA provides that, subject to the Act’s specific provisions, a spouse in a customary marriage is not competent to enter into a marriage under the Marriage Act while that customary marriage is still in existence.

The courts have also made it clear that a later civil marriage does not simply cancel or replace an earlier valid customary marriage.

In Monyepao v Ledwaba, the Supreme Court of Appeal held that the later civil marriage entered into by the first customary wife was a nullity and had no effect on the validity of her earlier customary marriage.

So, if you are still legally married under customary law, do not assume that walking into a Home Affairs office and entering into a civil marriage with somebody else will solve the problem.

It won’t.

The existing customary marriage must first be properly dealt with.

What About Bigamy?

This needs some care.

It is tempting to say that anyone who enters into a civil marriage while a customary marriage is still in existence automatically commits the crime of bigamy.

That is too simplistic.

The important and established legal point is that the later civil marriage can be invalid, while the earlier customary marriage remains in force.

Whether criminal liability arises in a particular case is a separate legal question and should not simply be assumed from the fact that the later marriage is invalid.

For an ordinary person, the practical message is much simpler:

Do not attempt to marry someone else while you still have a subsisting customary marriage. Get proper legal advice and deal with the existing marriage first.

The Monyepao Case: Why This Matters

The Supreme Court of Appeal’s decision in Monyepao v Ledwaba and Others is a useful real-world example.

Mr Tlou Coliphta Phago had entered into a customary marriage with Ms Mokgaetji Maria Ledwaba.

The couple later separated, but there was no divorce decree dissolving their customary marriage.

Ms Ledwaba subsequently entered into a civil marriage with another man.

The Supreme Court of Appeal held that the first customary marriage had not been dissolved. The later civil marriage was a nullity and did not terminate the earlier customary marriage.

The case also dealt with claims concerning matrimonial benefits and the deceased estate. Importantly, the court confirmed that an order for forfeiture of matrimonial benefits is linked to divorce proceedings and cannot simply be obtained outside that process.

The Bottom Line

A customary marriage is not something you can simply switch off when the relationship ends.

If you have entered into a valid customary marriage, separation does not automatically end it.

Neither does moving out.

Neither does living apart for years.

Neither does a family agreement.

And neither does simply returning lobola.

A court decree of divorce is required to dissolve the customary marriage.

And before you sell property, remarry, or assume that you are legally single, make sure you know exactly what your matrimonial status and property regime are.

If there is any doubt about whether a customary marriage exists, whether it was validly concluded, or what property regime applies, get advice from a South African family-law practitioner. These issues can have major consequences for your property, inheritance and future marriage.

For more information and/or assistance with your legal issues, please contact BBP Law Inc.