The Dissolution of Customary Marriages Where the Defendant Is Mentally Ill or in a State of Continuous Unconsciousness
Year: 2025
Type: article
Abstract: Section 8(1) of the Recognition of Customary Marriages Act 120 of 1998 (the RCMA) provides for only one ground for a divorce in customary marriages, namely, the irretrievable breakdown of a marriage. This ground is borrowed verbatim from the Divorce Act 70 of 1979 (the DA). However, the DA provides for further grounds for a divorce, namely, mental illness, as provided for in section 3(b) read with section 5(1) and continuous unconsciousness, as provided for in section 3(b) read with section 5(2); in addition, the defendant enjoys a measure of protection under these grounds. The glaring absence of mental illness and continuous unconsciousness as grounds for a customary marriage divorce in the RCMA raises some questions on how courts should approach a customary marriage divorce involving a mentally ill or unconscious defendant spouse. This absence also presents challenges for a plaintiff in a customary marriage divorce who may need a divorce on a ground other than the irretrievable breakdown of a marriage. This absence also borders on being unconstitutional in so far as it indirectly differentiates between those in civil marriages and those in customary marriages. This note critically discusses these issues.
Author: Siyabonga Sibisi
Institution: University of the Witwatersrand
Language: English
Topic: Family and Matrimonial Law
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: gold
Estimated APC paid: $190
OpenAlex ID: W4417020914