The Dissolution of Customary Marriages Where the Defendant Is Mentally Ill or in a State of Continuous Unconsciousness

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.