This tends to be a complicated subject, as South Africa’s Constitution guarantees all South Africans may enter into relationships of many forms. Two people may enter into civil union marriages, same-sex marriages, customary marriages, religious marriages or domestic partnerships (cohabitation agreements/living together).
South Africans are also given the right of the freedom of worship: to choose their own religious beliefs. The major faiths practiced in South Africa are Christianity, Islam, Hinduism, traditional African religions and Judaism.
However, this does not mean that all religious and customary marriages, and therefore divorces, are regarded, or seen as valid in the eyes of the High Court. After all, the Constitution guarantees an official policy of non-interference in religious practices.
The definition of marriage (matrimony/wedlock) is a legally recognised, life-long, voluntary union between a man and a woman, or two people of the same sex. However the definition of marriage changes when one considers differences in culture.
Commonly, it can be found that the following factors are common for most customary marriages: marriage is an institution in which an interpersonal relationship, usually of an intimate and sexual nature. It is acknowledged through the exclusion of all other persons. It is verified by the completion of rite and traditions in accordance with customary law.
Whereas a religious union is viewed as a more spiritual bond and a holy vow as commanded by their God/s or deity, where a man and a woman create a unified relationship according to their Gods laws and commandments.
Religion, culture and tradition are well known to emphasize that marriage should be a life-long partnership, while the law ultimately views marriage as a contract entered into willingly by two parties which, if breached, there are remedies for: either in suing or, depending on the circumstances and when necessary, terminating the marriage through a divorce.
This leads to many religious South Africans having to have an official perform a civil marriage in tandem with the customary marriage, or to execute two weddings in order for their union to be both spiritually and legally, fulfilling and binding.
If the spouses choose not to make their union legally binding, and therefore valid in the eyes of the court, they risk vulnerability later on if the marriage ever happens to dissolve (This is particularly true for the wife).
Civil marriages have always been recognised by the court and fully protected by the law. These days same-sex marriages and customary marriages share the same recognition and protection. However legislation regarding most customary religious marriages has yet to be formalized, thus in most instances religious marriages and domestic partnerships have no legal protection.
The Recognition of Customary Marriages Act 120 of 1998 allows the court to recognize indigenous South African customary marriages which are concluded in terms of the indigenous customs and traditions (came into effect in November 2000).
Most of the ‘traditional’ groups of people who arrived in the south from west and central Africa were Bantu-speaking. Therefore these Bantu-speaking people were the ancestors of many South Africans today, especially the Nguni groups such as the Xhosa and the Zulu.
This Act makes provision for the legal recognition of both monogamous and polygamous customary marriages, provided that they are concluded according to the culture, customs and usages traditionally observed among South African indigenous people. A customary marriage in accordance with this Act is currently the only means by which a polygamous marriage can be regarded with complete legal validity in South African law.
The legal requirements of such a customary marriage are: the prospective spouses must be over 18 years old; both must consent to the union to each other under customary law and; the marriage must be negotiated and celebrated in accordance with the customary law.
If the spouse is not a partner in another existing customary marriage, and if both potential spouses have not concluded an ante-nuptial contract (ANC), then the marriage will be regarded as being in community of property and of profit and loss.
Therefore, a divorce in terms of an indigenous South African customary marriage would be treated as a marriage in community of property would be treated.
In terms of customs, it is believed by some that marriage is viewed as a covenant, thus in the event of a divorce, the bride and groom should have another ceremony to announce this. This tradition is used as a deterrent for couples to get divorced, and reinforce that only death may terminate a marriage.
In customary Shona law and some other indigenous cultures, the divorce has to involve the go-between and the family of the woman. The husband must explain why he has chosen to divorce his wife. This may start through the giving of a rejection token, given to the wife personally or through the go between.
In some instances, there are attempts to reconcile the couple. It is not always as simple to receive a divorce under customary law.
In some indigenous customs, this may mean that, although legally a marriage can be terminated through divorce, there may be social repercussions such as being ostracised within the community.
In other cases (rarely) the husband of a customary marriage may ask for a divorce, and because the decision involves the entire family, they may veto his decision, and conclude that the wife will stay with the in-laws (as it is known in many indigenous south Africans cultures that a wife’s place in life as well as in death, is with her in-laws).
Today, some two thirds of South Africa’s Indian demographic follows the Hindu faith.
In terms of the Marriages Act, there is no automatic legal recognition of Hindu Marriages. A Marriage by Hindu rites is governed by the tenets of the Hindu faith (not by civil law).
Hindu, Muslim and Jewish couples must still be married according to the civil union act to have their marriages recognised as legal in South Africa.
If the couple wishes to be bound by South African civil law, they must formally be married by a person who is registered in terms of the Marriages Act and who may perform a civil marriage in tandem with the customary marriage, and issue the parties with a marriage certificate in terms of the Marriage Act.
A man and a woman between whom a customary marriage exists may enter in a civil union marriage (Marriage Act of 1961), if neither of them is a spouse in another subsisting customary marriage with any other person.
It is however against civil law to have a more than one wife and therefore you cannot enter into a customary marriage and civil marriage simultaneously.
In the Muslim faith, the role of the (Imaam/ Alim) Muslim cleric, if he is an authorised marriage officer, is to solemnise the marriage in terms of the Marriage Act, after the (Nikah) Islamic marriage ceremony. He must thereafter register the marriage formally with the Department of Home Affairs.
The development of cultural practices within the Sikh community due to the influence of the modern world, especially when a marriage breaks down and issues of mediation and divorce come forth. Private mediation initiatives for families are the norm rather than the exception.
Although certain religions and cultures show resilience against change, the Sikh community has realised that change is inevitable.
They are therefore applying a parallel system where they try to mend the broken marriage first through family mediation and, if that does not succeed, they permit the couple to obtain a secular divorce.
There are three types of divorce:
Here the husband will have issued all three divorces to his wife. Once the husband issues this practice, the marriage is immediately terminated and the divorce is final.
A Jewish divorce is called a “get”, and may only be granted by a ‘Beth Din’ if the husband permits his wife the divorce. The get is a dated and witnessed document wherein the husband expresses his unqualified intention to divorce his wife and sever all ties with her.
The get is written by an expert scribe acting as the husband’s agent. Each get is individually tailored to the particular divorcing couple.
Previously, a husband who refuses to give his wife a get binds her, in Jewish law, to their marriage, even if they have been divorced civilly and he has married another woman in terms of civil law.
Without a get, no matter how long a couple is separated, and no matter the civil documents, in the Jewish faith they will still be considered married.
In 1996 the South African parliament amended the Divorce Act of 1979 to include a provision that empowers the court to refuse to grant an order of divorce.
The Divorce Act allows South African courts to prevent a Jewish husband from obtaining a secular divorce without also providing a woman with a religious divorce. This is meant to ensure that a woman will automatically be granted a get by her husband, if a secular divorce is granted.
Van Deventer & Van Deventer Incorporated attorneys are skilled in dealing with customary and religious divorce in South Africa. Contact us today for more information.
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