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Customary marriages only dissolved by divorce – SCA

Publish date: 01 June 2020
Issue Number: 875
Diary: IBA Legalbrief Africa
Category: South Africa

A customary marriage one simply walked away from years ago without dissolving it through a divorce remains valid even after death. Such a marriage cannot also be rendered invalid because an estranged spouse went ahead and entered into a civil marriage with another person. Instead, it is the civil marriage that is null and void because it was entered into while the customary union remained undissolved. The Star reports these are findings of a landmark judgment delivered by Judge Clive Plasket at the SCA. The court ruled over a legal battle between two wives of the late Tlou Coliphta Phago, who died intestate in 2012. Matsatsi Monyepao – whom Phago married in 2010 and lived with until his death – wanted the SCA to declare invalid his marriage to Mokgaetji Ledwaba. Phago married Ledwaba in a customary marriage in 2007 and separated from her in 2008, leaving her in their matrimonial home with their minor child.

Plasket found in Ledwaba’s favour on the nullity of the civil marriage, on grounds that it was registered while her customary union to Phago was undissolved. The Star says Plasket dismissed Monyepao’s argument that her husband's customary marriage to Ledwaba got dissolved in 2008. ‘There is no factual basis for finding that Ledwaba’s customary marriage to Phago was terminated – presumably by divorce – in 2008,’ said Plasket. ‘Monyepao placed no admissible evidence before the court of first instance to establish this fact.’ Plasket pointed out that according to legislation, customary marriages can only be dissolved by divorce. ‘In order for the marriage to have been brought to an end prior to the death of Phago, it would have been necessary for a decree of divorce to have been issued in terms of section 8 of the Recognition of Customary Marriages Act 120 of 1998,’ he said.

Full report in The Star (subscription needed)

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