Chapter 9 -The dissolution of customary marriages

Question 1

What are the methods of dissolution of customary marriages?

Answer 1

1. Divorce (in court)
2. Death of one spouse (out of court)

Question 2

Explain the dissolution of customary marriage by court action (divorce)

Answer 2

Since 15 November 2000, customary marriages, whether contracted before or after this date,, may be dissolved by a court order in any of the courts having jurisdiction, which are the High Courts and any regional courts for a district contemplated.

A customary marriage may be dissolved only on the grounds of the irretrievable breakdown of the marriage.

Question 3

Explain the test to determine the irretrievably broken down marriage.

Answer 3

1. Is there a reasonable prospect that the parties will be able to restore a normal marriage relationship between them?

Question 4

In civil marriages, evidence can be submitted to the court to prove the marriage is irretrievably broken down.

Answer 4

1. The parties have not lived together as husband and wife for a continuous period of at least one year immediately prior to the date of the divorce action.
2. The defendant has committed adultery and the plaintiff finds this irreconcilable with a continued marriage relationship.
3. The defendant has, in terms of a sentence of a court, been declared a habitual criminal and is undergoing imprisonment as a result of such a sentence.

Question 5

What is the effect of dissolution on marriage goods?

Answer 5

The marriage goods are either returned to the husband or forfeited by the husband in favour of the wife’s group. In some cases,, the marriage goods are returned in part only.

Question 6

What are the factors taken into account when returning marriage goods?

Answer 6

1. The amount of blame on either side
2. The number of children born of the marital union
3. The portion of marriage goods already delivered

Question 7

What are the consequences of dissolution?

Answer 7

1. Consequences for the husband and wife
2. Consequences for the children
3. Proprietary consequences

Question 8

Explain the consequences for the husband and wife.

Answer 8

A husband’s status is not seriously affected. In original indigenous law, the wife reverted to being under the guardianship of her agnatic group unless she was older than 18.

Question 9

Explain the consequences for the children

Answer 9

Although the marital union has been dissolved, the wife’s house is not dissolved.

Question 10

Explain the proprietary consequences

Answer 10

The Recognition of Customary Marriages Act 120 of 1998 makes specific provision for maintenance and matrimonial estate sharing.