Section 8 of the Recognition of Customary Marriages Act 120 of 1998 (RCMA) purports to dissolve a customary marriage in terms the Divorce Act a civil marriage. An anomaly in this is that the very nature of a customary marriage is distinct from a civil marriage. A customary marriage is not purely a matter between the bride and the bridegroom, it is also ‘a group concern, legalising a relationship between two groups of relatives’ as was noted in the Mabena v Letsoalo 1998 (2) SA068 (T) case.
Prior to the RCMA, a customary marriage could be dissolved by the death of the husband provided the woman was not transferred to one of the brothers of the deceased who was in line to being the next heir. The RCMA now insists that a customary marriage be dissolved only by a court ordering a decree of divorce.
The Act makes provision as to how customary marriages are dissolved. Section 8(1) of the RCMA 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’. This alone indicates that mere separation will not exclude proprietary consequences in community of property, which will then apply automatically.
South African courts have over the years recognised customary marriages and have granted benefits to spouses who would ordinarily be granted to spouses in civil marriages. Since 30 November 2019, all customary marriages entered into before or after the commencement of the RCMA are in community of property subject to the accrual system.
Spouses in customary law marriages are cautioned that just like in civil marriages, customary law marriages must be dissolved by a court of law to avoid far-reaching matrimonial property consequences. For those matrimonial property consequences to be excluded, spouses in customary law marriages must now conclude an antenuptial contract. Spouses should also be aware that no law restricts them from entering a civil marriage. However, the only requirement is that there is no other person married to either of the spouses in terms of customary law marriage.
There are some grounds for divorce that were in place before the coming in of the RCMA and some of them are still relevant. These include; irretrievable breakdown of the marriage, adultery, desertion, repudiation, gross cruelty, or ill-treatment by the husband. The Natal and KwaZulu Codes of Zulu Law provide for the dissolution of the customary law marriage in addition to the Recognition of Customary Marriages Act.
With regards to custody, guardianship, access, and maintenance of children the court must be satisfied that the best interests of the child are protected as well as considering any report of the family advocate. The court may make any order it deems fit about the maintenance of the dependent children. A maintenance order may be varied or rescinded if reasons are produced by the parties. Furthermore, any interested party may be joined in proceedings related to the dissolution of marriages.
The dissolution of customary marriages has no effect on the right of succession or inheritance by the children to respective estates of their parents. The rules of primogeniture may ordinarily apply. However, the position may change by the changes envisaged by the Customary Law of Succession Amendment Bill of 1998.
Conclusively, the methods of dissolution for customary and civil marriages have been rendered the same by the Recognition of Customary Marriages Act.