High Court Declares Civil Marriage Null: Customary Marriage Rights Upheld

In a recent landmark judgment, the Eastern Cape Division of the High Court in NN and Others v BN and Others (Case No: 3932/2024) reaffirmed the legal standing of unregistered customary marriages and clarified that only a court can dissolve such a marriage under South African law.

Background of the Case

The dispute arose following the death of Mr. V[...] N[...], who passed away in October 2023. The applicants, led by the deceased’s first wife, approached the court seeking a declaration that the civil marriage between the deceased and the first respondent was null and void. Their primary argument was that Mr. N[...] had entered into a valid customary marriage with the first applicant in 1978, which was never legally dissolved.

The first applicant outlined in her affidavits that a full customary marriage had taken place, with all traditional processes, lobola payments, and ceremonial handovers properly conducted. This version was corroborated by witnesses, including the deceased's brother and a local headwoman.

It was only upon seeking to register the customary marriage posthumously that the first applicant discovered Mr. N[...] had entered into a civil marriage with the first respondent in 2017.

The Legal Issue: Dissolution of Customary Marriages

At the heart of the case was the legal question: Can a customary marriage be considered dissolved simply because one party left the matrimonial home or because the husband declared the marriage over?

The court gave a definitive answer—No.

The court reaffirmed Section 8(1) of the Recognition of Customary Marriages Act 120 of 1998 (RCMA), which states that a customary marriage can only be dissolved by a court through a decree of divorce on the grounds of irretrievable breakdown.

In this case, there was no divorce decree. The court stressed that customary marriages do not terminate automatically due to separation, desertion, or verbal repudiation.

Status of the Civil Marriage

Given that the customary marriage between the first applicant and the deceased still subsisted at the time of the civil marriage, the High Court ruled that the civil marriage between the deceased and the first respondent was null and void from the outset.

This ruling aligns with previous authority from the Supreme Court of Appeal (Netshituka v Netshituka), which held that any civil marriage entered into while a customary marriage subsists is a legal nullity.

Importance for Customary Law in South Africa

The judgment reinforces the constitutional recognition and protection of customary law. The court reiterated that customary marriages, whether registered or not, carry full legal recognition and protection under the Constitution and the RCMA.

It also highlighted that while customary law evolves with society, its dissolution processes must be respected, and parties cannot circumvent legal procedures.

The Court Order

In summary, the Court ordered:

1. The civil marriage between the deceased and the first respondent is declared null and void.

2. The first applicant and the deceased were in a valid customary marriage.

3. The Department of Home Affairs must register the customary marriage within 15 days.

4. The deceased estate must be administered recognizing the first applicant as the lawful spouse and her children as the deceased’s descendants.

5. The first respondent was ordered to pay the costs of the application.

   
   

Why This Case Matters

This judgment serves as a critical reminder that parties in customary marriages must follow due legal process to dissolve their marriage, failing which any subsequent civil marriage will be deemed invalid.

At Rudolf Buys & Associates Attorneys, we assist clients with navigating complex family law matters, including the recognition, registration, and dissolution of customary marriages. If you require legal advice or representation in similar matters, please contact us.