Are we still married if my partner collected lobola after we separated?

The long answer

An article by Legal Wise says that if the man is responsible for the breakup, the lobola is not returned. If the woman is responsible for the breakup, the lobola has to be returned. If the breakup is mutual or both the man and the woman are responsible for the breakup, an agreement can be reached between the two families in respect of the return of the lobola.

But that doesn’t settle the problem of whether you are still married or not. There is a lot of confusion around this issue, with some saying, as Go Legal does here, that if a couple has not registered their customary marriage at Home Affairs and are uncertain and confused as to whether they are married or not, they will have to approach the High Court for a declaratory order to confirm that they are, or are not, married. That of course will not be cheap as you have to have a lawyer to approach the High Court.

To go back to what the Recognition of Customary Marriages Act of 1998 says has to happen in order to be legally married:

• The couple must have agreed to marry;
• Both should be 18 years;
• The marriage process should be conducted in accordance with cultural traditions.

There have been a number of court cases involving precisely what cultural traditions make a customary marriage legally valid because different communities have different traditions. But the courts have recognised that customary law is a living and evolving thing, and so courts have to go into the particular circumstances of each marriage to decide if there was a valid marriage or not. 

Although lobola negotiations between the two families are a necessary part of the process of a valid customary marriage, the fact that lobola was not fully paid is not a sufficient reason to say the marriage does not exist.

A customary marriage can only be dissolved on the grounds of the irretrievable breakdown of the relationship through a divorce order granted by the court. Since the Constitutional Court judgment of 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. That means that if you divorce, the joint estate (all the assets and all the debts) is divided between the couple equally. If you simply separate, the joint estate will not be split 50/50, and for women, particularly, this generally means that you will lose out. 

So perhaps the safest course is to assume that you are indeed married, and apply to Home Affairs for a marriage certificate, which you will need in order to get divorced. The courts will not grant a divorce order without a marriage certificate. You would have to take the lobola letter and any other proof of the marriage celebrations, which could include photographs and statements by relatives at the wedding, to Home Affairs and apply for the marriage certificate.

You could also contact Legal Aid for assistance. It is a means-tested organisation that must assist people who cannot a lawyer. You can contact them here:

• Legal Aid Advice Line (Toll-free): 0800 110 110
• Please-Call-Me number: 079 835 7179

Wishing you the best,
Athalie