Divorce Process in Unregistered Customary Marriage

Divorce in unregistered customary marriage

Divorce in an unregistered customary marriage can present various challenges, particularly in jurisdictions like South Africa, where the legal recognition of such marriages depends significantly on proper registration under the Recognition of Customary Marriages Act (RCMA) of 1998.

Here’s how divorce typically works in the context of unregistered customary marriages:

Challenges

1. Legal Recognition: If a customary marriage is not registered, the primary challenge is proving the existence of the marriage in legal terms. Without registration, a marriage might not be recognized by the court, which can complicate divorce proceedings, particularly regarding the division of property and custody of children.
2. Rights Enforcement: In the absence of legal recognition, enforcing rights related to spousal support, division of marital assets, and custody can become problematic. Spouses might find it difficult to assert their rights without the formal acknowledgment of their marital status.

Steps for Divorce

1. Proof of Marriage: The first step is to establish proof of marriage according to customary law. This might involve witnesses from the community who attended the marriage ceremony or who have knowledge of the marriage.
2. Legal Advice: Seeking legal counsel is crucial. A lawyer can provide guidance on the process and what documentation will be necessary to prove the marriage in court.
3. Application to Court: The spouse seeking divorce must apply to a competent court, which could be a High Court or a family court that deals with matrimonial issues. The application should include all evidence that supports the existence of the marriage.
4. Settlement Agreement: If the parties agree on matters such as property division, child support, and custody, they can formalize this agreement in a settlement. If there’s no agreement, the court will decide based on equity and the best interests of the children involved.

Legal Outcomes

• Division of Property: Without registration, the default marital regime of ‘in community of property’ might not automatically apply. The division of property would then depend on the parties’ ability to prove what contributions were made by whom during the marriage.
• Custody and Support: Custody will be decided based on the best interests of the child, a standard approach in South African family law. Child and spousal support will similarly be determined based on evidence of the financial conditions and needs of the parties.

Recommendations

• Registration: To avoid such complications in the future, it is advisable for couples in a customary marriage to register their union as soon as possible.
• Legal Documentation: Keep detailed records and documentation of all assets acquired during the marriage and any other proof of the partnership, as these will be crucial in divorce proceedings.

Divorce in unregistered customary marriages requires navigating complex intersections of customary practices and formal legal frameworks, making legal advice and thorough documentation essential components of the process.