Dissolution of Customary Marriage in South Africa | Legal Guide

 A client asked: "I am married under customary law and would like to get divorced. How do I go about dissolving my customary marriage?"

Legal Framework

The dissolution of a customary marriage in South Africa is governed by the Recognition of Customary Marriages Act 120 of 1998 (RCMA). Section 8(1) of the RCMA provides the statutory basis for the dissolution process:

"A court may dissolve a customary marriage by a decree of divorce on the ground of irretrievable breakdown of the marriage."  

Core Legal Principles

• A customary marriage - whether registered or unregistered - can only be dissolved by a competent court issuing a decree of divorce.
• Mere separation of the spouses or traditional/cultural acts do not legally dissolve a customary marriage; only a court order has this effect.
• The grounds for divorce are the same as for civil marriages: the marriage must have broken down irretrievably, meaning there is no reasonable prospect of restoring a normal marital relationship.
• The provisions of the Divorce Act 70 of 1979 apply to the dissolution of customary marriages, including matters of property division, maintenance, and custody of children.

Proof and Procedure

• Before a court will grant a divorce, there must be prima facie proof that a valid customary marriage exists. This can include a marriage certificate, evidence of lobola negotiations, witness statements, or photographs of customary rituals.
• The process for divorce in a customary marriage follows the same steps as for civil marriages: filing a summons, serving it on the other spouse, and presenting evidence before the court.
• Registration of a customary marriage is not a prerequisite for its validity or for its dissolution, but registration can simplify proof of the marriage.

Conclusion

To dissolve a customary marriage, you must approach a competent court (such as the High Court or Regional Divorce Court) and obtain a decree of divorce on the ground of irretrievable breakdown. The court will require proof of the existence of the marriage and will apply the same principles as in civil divorce proceedings.

Labour Court clarifies jurisdiction in cross-border employment disputes involving South African public servants abroad

A discussion of Naidoo v Khosa NO and Others (JR1346/22) [2025] ZALCJHB 131. 

Introduction to the Legal Principles

As more South African employees take up roles abroad—especially in government—labour disputes involving foreign postings raise tricky legal questions: Can South African forums like the CCMA or bargaining councils hear these disputes?

In Naidoo v Khosa NO and Others, the Labour Court made it clear: Jurisdiction depends on the legal nature of the employment relationship—not just where the employee lives or works. If a South African entity employs someone under South African law, our labour forums still have authority.

Facts of the Case

• Employee: Ms. Reena Naidoo worked for the Department of International Relations and Cooperation (DIRCO) for 26 years. She was assigned to South Africa’s Permanent Mission to the United Nations in New York.
• Designation: While initially a South African citizen, she later became domiciled in the U.S., leading DIRCO to classify her as Locally Recruited Personnel (LCP).
• Dispute: Naidoo was dismissed for operational reasons and referred an unfair dismissal dispute to the General Public Service Sector Bargaining Council (Bargaining Council), seeking reinstatement.
• Jurisdictional Challenge: DIRCO objected, arguing that since Naidoo was domiciled in the U.S., the Bargaining Council lacked jurisdiction. It also claimed reinstatement was impossible as her position was abolished.
• Ruling by the Bargaining Council: The commissioner upheld DIRCO’s objection, refusing to hear Naidoo’s case.
• Labour Court Review: Naidoo then approached the Labour Court to review the jurisdictional ruling.

Labour Court’s Decision and Key Legal Findings

• The Labour Court rejected DIRCO’s argument, emphasizing that Naidoo was not employed by the Mission as an independent entity—instead, the Mission functioned as an extension of DIRCO, a South African government department.
• The Court found that Naidoo’s employment contract was governed by South African law, with no reference to U.S. law in her employment agreement.
• Bargaining Council’s Scope: The Court reaffirmed that statutory dispute resolution bodies like the CCMA and bargaining councils cannot independently determine jurisdiction with final authority; that role belongs to the Labour Court.
• The Court referenced SA Rugby Players Association v SA Rugby (2008) to support its ruling that jurisdiction depends on the legal framework governing employment, not just the employee’s physical location.
• The Foreign Service Act 26 of 2019 confirmed that DIRCO retained authority over the Mission, reinforcing that Naidoo remained a DIRCO employee.
• The Court also noted that had Naidoo pursued relief in U.S. federal courts, enforcement would be limited by the Foreign Sovereign Immunities Act of 1976, restricting legal action against state entities.
• Final Ruling: The Labour Court found that the Bargaining Council does have jurisdiction and sent the matter back to a different commissioner for reconsideration of Naidoo’s late filing.

Conclusion & Significance of the Judgment

This landmark ruling provides clear guidance on jurisdiction in cross-border employment disputes for South African public servants working abroad. The Court reinforced that jurisdiction is based on the employment relationship’s legal framework, not just the employee’s geographic location. If a South African entity governs the employment contract, local labour forums retain jurisdiction.

Moreover, it confirms that the Labour Court holds ultimate authority in jurisdictional disputes, ensuring legal certainty for employees and employers engaged in cross-border public service roles.