How do I dissolve my two customary marriages before I get into a civil marriage with my new partner?

The long answer

Thank you for your email saying that you were married in a customary marriage after paying lobola in 2014, and that you have custody of your two children from that marriage, after you and your wife separated in 2017. There was no divorce and you simply separated. 

You paid lobola for another partner in 2021 with whom you also have two children. This relationship has also broken down, but she refuses to leave your house because of the children, and insists that you should be the one to move out. She sold her own house without your knowledge, left her job, withdrew her pension and gambled away nearly a million rand.

You now want to pay lobola for someone else. The wife with whom you are presently living is willing to agree to your new marriage, provided she can stay in the house. But the person you want to marry does not want to enter a polygamous relationship and insists that the present marriage must be dissolved. You would like to enter into a civil marriage with your new partner, and you want to know what the consequences of this would be, and if you could get legal help to divorce or dissolve the previous marriages.

Just to clarify: custody used to be a common law concept which meant that the children lived with the parent who had custody, and that parent was responsible for providing housing, food, clothing and education. But after the Children’s Act of 2005 was enacted, the term “child custody” was no longer used in the law. It was replaced by the words “primary residence” and “contact”. 

As you probably know, the Recognition of Customary Marriages Act of 1998 (RCMA), which became law in 2000, gives women in customary marriages the same rights as women in civil marriages. 

The 2020 amendments to the 1998 Recognition Act mean that a woman in a customary marriage has the same legal rights as her husband to buy and sell property, to be a party to contracts, to inherit and sell assets, and to go to court. 

Something else to bear in mind: in January 2026, the Constitutional Court in VVC v JRM and Others confirmed that an antenuptial contract signed after a customary marriage is invalid. Because a valid customary marriage automatically creates an immediate community of property regime, any later contract is not legally valid. 

And since the Constitutional Court judgment on 30 November 2019, any customary marriage after the Recognition Act came into force in 2000, is held to be in community of property, unless the couple has taken out an antenuptial contract before the marriage. What that means is that if you divorce, the joint estate (which is all the assets and all the debts) is divided between the couple equally.

In terms of Section 8(1) of the Recognition Act, a customary marriage can only be ended by a court order of divorce on the grounds of irretrievable breakdown of the marriage. 

Mpho Kgomongoe, head of legal and technical at Simeka Consultants and Actuaries, says that in the absence of a divorce decree, the customary marriage still exists and cannot be dissolved by agreement or separation of the parties.

Smart About Money says that this was tested in a 2022 case to come before the Financial Services Tribunal, TN vs Pension Funds Adjudicator, where a woman had not lived with her husband for several years before his death, having returned to live with her family. According to local customary law, this indicated that the marriage had dissolved, and both the pension fund and the Pension Funds Adjudicator had taken the position that this was the case.

But the Tribunal disagreed, saying the only way any marriage, including a customary marriage, can end, under South African law, is through divorce or death.

Home Affairs says that a customary marriage must be registered with them within three months of the marriage. If you register with Home Affairs, you are given a marriage certificate. But if you don’t register the marriage, it does not mean that it is not a valid marriage. It simply means that it is harder to prove without a marriage certificate. 

It seems that most magistrate’s courts will not issue a divorce decree without a marriage certificate proving that the customary marriage exists. But Mary-Jane Mphahlele Attorneys Inc. explains that while some magistrate’s courts may want to see lobola letters and a marriage certificate as proof of the marriage, “the High Court does not require a marriage certificate or a lobola letter to issue summons for divorce proceedings to commence.”

She goes on to say that divorcing in a customary marriage follows similar principles to a civil marriage divorce: 

1. One or both parties must file for divorce

2. Grounds for divorce: the marriage must have broken down irretrievably 

In other words, although civil marriages and customary marriages are different, they are equal in terms of the law.

So where does all this leave you? You cannot marry a new partner in a civil marriage if you are still married under customary law. In an appeal in the High Court in Polokwane in 2025, Judge Maboku Mangena laid down the following legal principle: “It is not legally possible for both a customary marriage and a civil marriage to co-exist. Parties are either married under customary law or civil law.”

In order to marry a new partner in a civil marriage, would you need to divorce both your previous partners in the customary marriages?  

I think you need to get legal advice. If you aren’t able to afford a lawyer, you could approach Legal Aid, which is a means-tested organisation that must assist people who can’t afford a lawyer. These are their contact details: 

• Legal Aid 

Email: [email protected]

Tel: 0800 110 110 (Monday to Friday from 7am to 7pm) 
Please-Call-Me: 079 835 7179
 

Wishing you the best,
Athalie