How to divorce in a customary marriage in South Africa. The same Divorce Act applies — here is the process and how marital property is divided.
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Direct Answer
Divorce in a customary marriage in South Africa is governed by the Divorce Act 70 of 1979 — the same Act that applies to civil marriages. You must apply to the High Court or Regional Division of the Magistrates' Court for a divorce order. The default matrimonial property regime is community of property unless excluded by an antenuptial contract.
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Recognition of Customary Marriages Act 120 of 1998
Section 8
“A customary marriage may only be dissolved by a court by a decree of divorce on any of the grounds for divorce under the Divorce Act.”
Divorce Act 70 of 1979
Section 4
“A court may grant a decree of divorce if it is satisfied that the marriage has irretrievably broken down.”
What to Do
Step-by-Step Guide
1Confirm your marriage is registered at Home Affairs. If not, register it first — this is necessary for the court to recognise the marriage for divorce purposes.
2Consult a family law attorney or Legal Aid about the divorce process and your property entitlements.
3File a divorce summons in the High Court (or Regional Court for Magistrates' Courts with regional jurisdiction).
4Serve the summons on your spouse through a sheriff.
5Negotiate or litigate the division of property, maintenance, and child care arrangements.
What to Say
Exact Words to Use
“"Our customary marriage was registered with Home Affairs. I am applying for divorce under section 8 of the RCMA read with the Divorce Act."”
Tone: formal
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Can lobola affect property division on divorce in a customary marriage?
Lobola itself is not a matrimonial asset to be divided. However, the court considers all relevant circumstances when dividing assets. The return of lobola is a customary matter — courts may consider it but are not bound to order it.
What happens to customary marriage property if the marriage was polygamous?
Each wife in a polygamous customary marriage is in a separate marital relationship. Property acquired during each marriage is generally divided between that wife and the husband. The court must determine which property belongs to which marital estate.
Can a wife in an unregistered customary marriage get a divorce in South Africa?
A customary marriage is valid even if unregistered. You can apply to register it at any time, including during divorce proceedings. Courts have granted divorces in unregistered customary marriages by first confirming the marriage's validity.
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