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Maritime law »Posted 9 Nov 2019 Post Answer

legal question I need an advice for customary marriage divorce because we never registered our marriage. So i want to get divorced. Does it needs to go the legal way?

legal answer from lawyer E00313156Section 3 of tHe Recognition of Customary Marriages Act sets out the requirements for A valid Customary marriage. The requirements are:
1. The spouses to be must be over 18 years old (or have Parental consent or substituted consent if under 18 years of age);
2. Both spouses must consent to marry one another under customary law; and
3. The marriage must be negotiated and entered into OR celebrated In accordance of customary law. While section 4 does require the spouses to register their marriage section 4(9) of the Act provides that non-registration of the customary marriage does not affect the validity of the marriage. So to answer your question, it is not a problem that you did not register your customary marriage and your marriage is valid, if it meets requirements of section 3 above.

To answer the second part of your question, since three the recognition of customary marriages act came into operation, I customary marriage is a legally recognized marriage in South African law and has the same status as as a civil marriage computers concluded under the marriage act, 1961. This is applicable to both monogamous and polygamous customary marriages. As a result, a Customary marriage can only be terminated by a Court order (the same as a civil marriage). However, this does not mean that you have to litigate your divorce. If you and your husband are able to reach an agreement known as a settlement agreement your divorce may be brought on the unopposed roll (without a trial) and the settlement agreement can simply be made an order of court. A good way to avoid lengthy and costly divorce litigation is to attempt to mediate your divorce. However, Mediation is a voluntary process and if one party is not prepared to act in good faith or try settle the divorce amicably, litigation the only other option. If mediation is possible, you must ensure that the mediator is well versed in the Recognition of Customary Marriages Act, and attorney who is a mediator is preferable as they can offer mediation as well as instituting drafting the relevant pleadings once a settlement agreement has been reached.

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