Is there a way to prevent my previous customary law wife from trying to claim my assets one day, now that I have married again under civil law in 2023?

The long answer

As I understand it, the fact that the lobola was not paid in full before you split up does not necessarily mean that you were not married. And if you were married under customary law, you may not marry under civil law before getting a divorce from your customary law wife. 

I will quote from a letter that I wrote on a similar problem in February 2023, as I think it applies to your case as well. The problem is whether you are still legally married to your customary law wife or not. And if you are, you need to get divorced from her before your present marriage is legal.

What the Recognition of Customary Marriages Act of 1998 says must 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.

GoLegal says that if a couple has not registered their customary marriage at Home Affairs and is 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. You would need a lawyer to approach the High Court.

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. 

But in your case, the fact is that your customary law wife could indeed come after your assets, with the lobola letter. Also, that your present civil marriage might not be lawful until you have divorced your customary law wife.

So it may be the safest course to assume that you are indeed still married to your customary law wife, 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 need the lobola letter and any other proof of the marriage celebrations to give 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

In summary: First, you need to confirm whether or not you are still legally married to your customary law wife. You need a lawyer to approach the High Court to find out. There are pro bono lawyers you can contact if you cannot afford a lawyer. Then, if you ARE still married, you need to get a marriage certificate and then legally divorce in order for your civil law marriage to be valid. If you do not officially divorce your customary law wife, she might be able to use the lobola letter to try to claim your assets one day. 

Wishing you the best,
Athalie