The short answer
There are other ways that you can prove your marriage to get divorced.
The whole question
My child's father and I have been in a customary marriage for seven years. Now I found out he has a two-year-old son by another woman. I want to leave this marriage but I lost my lobola negotiations letter that proves the existence of our marriage.
The long answer
Although it is recommended to register a customary marriage at Home Affairs, in order to have proof of the marriage, it does not mean that your customary marriage is not valid if you didn’t register it. It just makes it harder to prove.
The Recognition of Customary Marriages Act of 1998 basically gave women in customary marriages the same constitutional rights as men, such as being able to inherit and own property, which they were previously denied. Under this Act, a customary marriage is considered to be valid if the couple had agreed to marry, were 18 years or older, and if the marriage had been conducted in agreement with cultural traditions.
In terms of the Recognition Act, all customary marriages are regarded as marriages in community of property unless the couple had taken out an antenuptial agreement before the marriage. Community of property means that if the couple divorces, their joint estate is divided equally between them. This means that all the assets and debts are equally shared
In an article by Eileen Dexter for Schindlers Attorneys in March 2022, she points out that it’s important for women to know that they will only get half of the estate if they actually divorce. A separation without divorce will not give them any access to any assets.
She also emphasises that it’s important that women know that they have a right to 50% of the joint estate, and warn them not to sign a settlement agreement accepting less before the divorce order is granted by the court.
Previously, if a woman wanted to leave the marriage under customary law, the belief was that she was not entitled to anything except her personal belongings if she left the marital home. This is not the case since the Recognition Act, but you can only claim 50% of the joint estate if you actually divorce.
A customary marriage can only be dissolved by divorce on the grounds of irretrievable breakdown of the relationship, and this divorce order must be granted in court.
The problem in your case is proving the existence of the marriage because you have lost the lobola letter. But proving the existence of a marriage that has existed for seven years should not be impossible to do:
These are the documents that Home Affairs would require as proof if you were registering the marriage:
The lobola letter;
In the case of the lobola letter, you could draw up an affidavit saying that your husband had paid the lobola in full (with dates of meetings/negotiations and payments, in as much detail as you can find, including bank statements if there are such, whose dates prove the existence of the payments you have cited). You would need to get some or any of the family members who took part in the lobola negotiations to sign that this is true in order to make your affidavit stronger.
You would also need to ask guests at your wedding to be witnesses to the fact of your marriage, and if they cannot be present in person, to sign affidavits stating that they were present at your wedding and can testify to the existence of your customary marriage. Also, include as many photos as you can find.
You would need to take all this to the nearest Home Affairs office and ask them to register the marriage and issue a marriage certificate. It is only with a marriage certificate that you can get a divorce order from the court.
If Home Affairs refuses to issue the marriage certificate, you would have to make a court application for the court to instruct Home Affairs to issue a marriage certificate. The courts have to go into the particular circumstances of each marriage to decide if there was a valid marriage or not. In your case, since you have been married for seven years and have a child together, I cannot see how the courts would refuse to grant the order instructing Home Affairs to issue a marriage certificate.
In previous cases, the courts have remarked that “long cohabitation raises a strong suspicion of marriage, especially when the woman’s father has taken no steps indicating that he does not so regard it”.
And Professor TW Bennet was quoted in court to have said, “Proof of cohabitation ... may raise presumption that a customary marriage exists … And, if there is no cogent evidence in rebuttal of that presumption, the court will definitely conclude that a valid customary marriage exists (or existed) between the parties.”
Which in non-legal language simply means that if you can prove that you and your husband were living together as a married couple, and there is no real evidence that can be shown that you were not living together, the court will have to agree that a valid customary marriage exists (or existed) between you and your husband.
If your husband wants to marry the mother of the two-year-old son as well, in a customary marriage, he would need to get the court’s permission to do so, and he would need to get your permission too, in order to get the court’s permission. The court would then have to decide on a fair and appropriate property division between you and the second wife, taking the children’s interests into account as well.
Your husband could not marry the mother of the two-year-old son in a civil marriage, unless you and he were legally divorced, because a person in a customary marriage may not marry someone else in a civil marriage.
Going to court is an expensive business, so perhaps you could start by approaching Legal Aid, which is a means-tested organisation, that must assist people who cannot afford a lawyer. These are their details:
Legal Aid Advice Line (Toll-free): 0800 110 110
Please-Call-Me number: 079 835 7179
You could contact the Women’s Legal Centre Trust, based in Cape Town, on 021 424 5660. This is their address:
2nd Floor, 5 St Georges
St Georges Mall
Wishing you the best,
Answered on Dec. 7, 2022, 12:46 p.m.
Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.