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June 7, 2020

CUSTOMARY v CIVIL MARRIAGES: DOES ONE INVALIDATE THE OTHER?

Many South Africans are misinformed that customary marriages are not recognised, that they ought to be converted to civil marriages to be legally enforceable or that both marriages can co-exist. There is also the belief that customary marriages do not have to be dissolved by a court of law and that a civil marriage supersedes a customary marriage. This has always been the historical approach.

The Supreme Court of Appeal in Monyepao v Ledwaba and Others (case no 1368/18) [2020] ZASCA 54 (27 May 2020) was called to determine and provide clarity on the following complex issues:

  • whether the customary marriage between the Respondent and the deceased was dissolved in February 2008;
  • if not, whether the Respondent’s civil marriage to “X” had the effect of invalidating her customary marriage to the deceased; and
  • whether the Respondent should be ordered to forfeit the benefit of her marriage to the deceased.

The Appellant alleged that the Respondent married the deceased in either June or July 2007 in terms of customary law and that the marriage lasted until February 2008. The Respondent’s version was that the marriage relationship was never terminated until the death of the deceased. The Appellant alleged that between 17 July 2010 and 28 August 2010 she and the deceased entered a customary marriage. On 26 November 2009, the Respondent married “X” in a civil marriage

In respect of the first issue, the court said that for a marriage to be dissolved prior to the death of the deceased, it could only be by way of a decree of divorce being issued in terms of Section 8 of the Recognition of Customary Marriages Act of 120 of 1998 (the “RCM Act”) on the ground of irretrievable breakdown of the marriage. 

 In respect of the second issue, the court referred to Netshituka v Netshituka and others 2011 (5) 453 (SCA) where the court held that a civil marriage between A and B that was entered into while A was married in terms of customary law to C was a nullity. In the circumstances of the present case, the court held that the Respondent’s purported marriage to “X” was a nullity and it had no impact on the validity of her prior customary marriage to the deceased.

In respect of the third issue, the court relied on Section 8 (4) of the RCM Act which provides that when a court grants a decree of divorce in respect of a customary marriage, it has powers contemplated in Section 9 of the Divorce Act 70 of 1979. Section 9 (1) provides as follows:

“When a decree of divorce is granted on the ground of the irretrievable break-down of a marriage the court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the duration of the marriage, the circumstances which gave rise to the break-down thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited.”

In terms of Section 9 (1) the court has the power to order forfeiture of benefits only as an adjunct to a decree of divorce. Moreover, a claim for the forfeiture of benefits can only be made by one party to a marriage against the other in divorce proceedings. It is not open to an outsider to claim that relief. Where the proceedings are not divorce proceedings, the court has no jurisdiction to order forfeiture and any third party requesting such an order where they are not a party to a marriage has no standing.