Note: This article was first published in GroundUp: http://www.groundup.org.za/article/what-happens-when-customary-marriage-goes-wrong/

Tando Mabunu-Mandela and Mandla Mandela have been embroiled in a bitter divorce since 2009. They were married in community of property in 2004. Mabunu-Mandela claims she is entitled to half of Mandla's assets which might include R3m left to Mandla Mandela by Madiba.

This high-profile case raises important questions about what is considered marital property in customary marriages and how marital property can be shared on divorce. Elena Moore and Chuma Himonga report on the results of research on this topic conducted in association with the National Movement of Rural Women.

"I married my husband in community of property. The house we are living in was my husband’s inheritance from his family. I recently filed for divorce and my husband refuses to sell the house, stating that it is his inheritance. What can I do in that situation?"

A woman in a discussion group in Limpopo shared this problem with us during the research we conducted in association with the National Movement of Rural Women. This is a common problem in South Africa, particularly in rural areas.

According to the Recognition of Customary Marriages Act 1998, all customary marriages are entered into ‘in community of property’ unless the parties have an ante-nuptial contract. If the marriage is dissolved, both parties are entitled to an equal division of the joint estate. The woman is entitled to bring this matter to the court.

The Limpopo woman cited in our study would have benefited from the matter being heard by a court to sort out the intricate law governing property rights in a marriage in community of property in which the matrimonial property is claimed to be an inheritance. But our study shows that very few divorcees go to court or obtain an equal share in the joint estate. There are several reasons for this.

First, in reality most people do not obtain a divorce; they separate informally. Although the Act permits customary forums of dispute resolution to mediate marital disputes, only a court with appropriate jurisdiction can grant a divorce. So the legal reforms introduced by the Act to ensure greater gender equality and access to material resources are useful only if the parties dissolve their marriage in a court.

Married couples who separate informally will not benefit from the legal rules regulating the consequences of the dissolution of the marriage.

Second, most people married in community of property in terms of the Act are not aware that the default regime in customary marriage is in community of property. Neither are they aware that they are legally entitled to an equal division of the joint estate. So even if they are willing and able to bring the matter to court, they do not know that they could seek an equal share, so they don’t pursue the option. And in some cases, participants said they ‘signed divorce papers’ without knowing the consequences of their actions.

Moreover, among the one hundred people we spoke to about these matters, about one third didn’t believe seeking an equal share was the right thing to do. There is a perception that family property belongs to the husband and the husband’s family.

Third, the study also found a belief among some participants that, if a spouse wants to leave a marriage, they should leave and just take their clothes (personal belongings) with them. The belief that a spouse who leaves a marriage is seen as deserting the marriage and family does not recognise the range of circumstances, especially abusive conditions, under which many people are forced to leave a marriage.

Fourth, even in divorces that end up in courts, the courts do not always pay sufficient attention to the circumstances relevant to the redistribution of the matrimonial property. This is contrary to guidance Justice Moseneke gave in Gumede v President of the Republic of South Africa  on how to assess the division of assets on the dissolution of a customary marriage. He explained that “the court must examine all the circumstances relevant to the customary marriage and in particular the manner in which the property was acquired, controlled and used by the parties”.

A related finding from our review of files in a Regional Court showed that even if the parties went to court they would not be guaranteed an equal division in the joint estate. This is because the courts do not always comply with the terms of the Act. In many cases, litigants relied on customary law to justify their claim to an uneven share of the matrimonial property. This also suggests that legal representatives are not assisting the implementation of the Act by ensuring that the correct law is applied and may be unaware of the parties’ entitlements under the Act.

There exists a great need not only for public information but also, and most importantly, training of all those involved in the implementation of the Recognition of Customary Marriage Act – for example, judges, lawyers, members of the public – in the principles and intricacies of this Act.

Fifth, the study found that the Act has inadequately addressed how civil law remedies incorporated in the Act apply to customary law disputes. Concepts such as ‘in community of property’, ‘joint estate’, ‘accrual system’, ‘inheritance’, ‘matrimonial home’, and so on impose definitions on customary law events and matters that are ill-conceived.

Finally, the findings did reveal that people consider the court the correct place to have maintenance matters heard. Although there were several cases where maintenance was irregular or in arrears, most participants knew how to resolve such disputes and which dispute resolution forum to use. Mothers were generally tasked with the responsibility of seeking maintenance. Turning to the court to resolve maintenance disputes was regarded as the proper way to handle such disputes.

The study also reveals interesting information on the custody of children. First, the findings reveal that customary law embraces the voice of the child in custody matters. Second, we found a large number of divorces reviewed in the Regional Court involved custody disputes. The vast majority of cases were contested, which demonstrates the need for third-party involvement.

In terms of s 4(1) of the Mediation in Certain Divorce Matters Act 24 of 1987, the family advocate is supposed to investigate the family situation and supply a report and recommendations for custody. The family advocate was involved in some cases, but not in all, and even when the family advocate is involved, how customary norms and laws are used by the courts to determine what is in the best interests of the child is unclear.

In conclusion, while our findings show that the Act is adequately implemented in some instances involving divorce, the majority of these matters are beyond its scope. Thus, its objectives, including the achievement of gender equality at the end of a customary marriage, are not being met in practice.

Himonga is the NRF Chair in Customary Law and  Moore is in the Department of Sociology at UCT. This is the second in a series of three articles.

Views expressed are not necessarily GroundUp's.