Customary marriages can only end if there is a court order. The same grounds for divorce that apply for civil marriages now apply to customary marriages. In other words, if the court agrees that there has been an ‘irretrievable breakdown’ of the marriage then it will agree to dissolve the marriage. The spouses are free to settle on any terms they choose, but the court will make an order regarding the custody and guardianship of any minor children and may make an order for maintenance to be paid, taking into account any arrangement that may have been made in terms of customary law.

CUSTOMARY PRACTICES

Lobolo plays an important role in Customary law. Lobolo is a negotiated sum of money that the groom pays to the bride’s family. This payment is done in good faith and is an indication that the groom will be able to provide a good life for the bride and the bride will be a good wife to the groom. If the customary marriage ends the husband may on certain grounds claim the return of part or all of his lobolo from the wife’s family. As there are many African traditions in South Africa the grounds for the return of lobolo might vary from tradition to tradition. Possible grounds on which the husband can claim lobolo:

• If the wife absconds for no reason
• If the wife cannot have children
• If the wife neglects her household duties and neglects the children

Possible grounds on which a husband cannot claim the return of lobolo:

• If the husband publicly rejects his wife for no reason
• If the husband and husband’s family accuse the wife of witchcraft If the husband abuses the wife
• If the husband abandons the wife

When the parties apply to the court for a divorce and there is a dispute regarding the return of lobolo the parties can ask the court to assist or the parties can approach the Community courts and courts of Chiefs and Headmen. It is likely that a claim for the return of lobolo, without approaching the court for a divorce first, would be subject to challenge on a number of grounds, the most important being that the court would not have jurisdiction to grant an order that is equivalent to dissolving a marriage.