Ending a Muslim or customary marriage: what the law now covers

At a glance

Muslim marriage

Under the Divorce Act since 2024

A marriage concluded in accordance with the tenets of Islam (section 1).

Customary marriage

Only a court can dissolve it

Recognition of Customary Marriages Act, section 8.

Not registered?

Still a valid customary marriage

Failure to register does not affect validity (section 4(9)).

The ground

Irretrievable breakdown

The same for both.

What this guide does not cover yet

Those are questions for an attorney.

Muslim marriages

• A court can grant a divorce

  Divorce Act, section 3

  A Muslim marriage can be dissolved by a decree of divorce, on the same grounds as any other marriage.

• The children come first

  Section 6

  The court must be satisfied about the arrangements for any minor or dependent child of a Muslim marriage, and can make orders about maintenance, care and contact.

• Assets can be transferred

  Section 7(3A) and 7(4)

  Where you have not agreed how to divide your assets, a spouse can ask the court to order the other to transfer assets. The court must be satisfied that it is fair because that spouse contributed, directly or indirectly, to the other's estate during the marriage.

• More than one wife

  Section 7(5)(aA)

  Where the husband is a spouse in more than one Muslim marriage, the court must take into account any contract or agreement between the parties.

• Forfeiture

  Section 9

  The court can order that a spouse forfeits the financial benefits of the marriage, as in any other divorce.

The Act treats it as it treats any other marriage, so the court process is the one in the divorce guide.

Customary marriages

Is it a valid customary marriage

A customary marriage that was valid before the Act began is recognised for all purposes (section 2).

Registration

• You are meant to register

  Section 4

  Spouses have a duty to register the marriage. Either of you can apply.

• If you did not

  Section 4(9)

  The marriage is still valid.

• Proving it later

  Section 4(5) to (8)

  Anyone with a sufficient interest can ask for an enquiry and registration. A court can order a marriage to be registered. A certificate is accepted as proof of the marriage unless disproved.

Ending it

1. It goes to court

   Who:

   Either spouse

   A customary marriage can only be dissolved by a court, by a decree of divorce (section 8(1)).

2. The ground

   Who:

   The court

   That the marriage has broken down irretrievably, with no reasonable prospect of restoring a normal marriage relationship (section 8(2)).

3. The children

   Who:

   The court, and the Family Advocate if asked

   The same protections apply as in any divorce: the court must be satisfied about the children, and the Family Advocate can be asked to enquire (section 8(3)).

4. The orders

   Who:

   The court

   The court has the powers it has in any divorce over assets, maintenance and forfeiture. When it orders maintenance it can take into account what has been arranged under customary law. Where a husband has more than one wife it must make orders that are fair to all (section 8(4)).

Family and traditional leaders. The Act does not limit the role that any person, including a traditional leader, plays under customary law in mediating a dispute before the court dissolves the marriage (section 8(5)).

Mediation is not safe if there has been abuse, threats or fear. If that is your situation, start with crisis lines and protection orders.

In a customary marriage a wife has full status and capacity, equal to her husband's: to own and sell property, to contract and to go to court (section 6).

What goes wrong

• Thinking an unregistered customary marriage is not a marriage

  Not registering does not affect validity (section 4(9)).

  Worth checking: whether the three requirements above were met.

• Thinking the families can end a customary marriage

  Families and traditional leaders can mediate. Only a court can dissolve the marriage (section 8).

  Worth checking: whether a court has granted a decree of divorce.

• Marrying again while a customary marriage still stands

  A marriage that has not been dissolved by a court is still a marriage.

  Worth checking: whether the first marriage was ever dissolved by a court.

• Nothing to prove the marriage happened

  A certificate is accepted as proof. Without one, the marriage has to be shown some other way (section 4).

  Worth checking: what evidence exists: a certificate, a lobolo letter, photographs, witnesses.

• Assuming a Muslim marriage has no standing in court

  A court can now dissolve a Muslim marriage and make orders about children and assets.

  Worth checking: the Divorce Act as amended in 2024.

What to gather