Customary Marriage and Divorce

How does it work in terms of community of property?

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The new Recognition of Customary Marriages Act (RCMA) amendment gives equal rights to spouses in respect of all ‘household property’ and ‘family’. These rights must be enjoyed by all married partners in the best interests of the whole family. In a nutshell, all customary marriages are in community of property unless an ante-nuptial agreement explicitly states otherwise.

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How does one get divorced after being married by customary law?

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There are no benefits to separating from an estate planning point of view. Separation carries no legal weight – you are still married and you don’t have the benefit of legal rules to regulate the ramifications of the separation. The only way to divorce is through a court with an Order of Court.

 

What are the things women need to know about seeking a divorce from a customary marriage?

 

1. Some people are unaware that the default regime is in community of property so they don’t seek their equal share.

2. Sometimes the perception is that assets are solely owned by the husband and his family, this is not the case.

3. There can be a damaging idea that the spouse who leaves is deserting the marriage – even in the case of abuse.

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