A customary marriage is valid and effectual for all purposes under section 3(2) of the Marriage Act (Chapter 280). Ending one therefore requires a legal route.
The two routes
| Route | Court | When available |
|---|---|---|
| Annulment — Marriage Act s 5(3) | Local Court | Where the marriage was entered into in contravention of section 5 and the woman applies at the first reasonably practicable opportunity |
| Dissolution by custom | None required — but a Local Court or Village Court may be involved | Where the applicable custom provides for dissolution and its requirements are met |
Section 4 of the Matrimonial Causes Act (Chapter 282) is one sentence: “This Act does not apply to or in relation to a customary marriage.”
So there is no petition for dissolution, no decree of nullity, and no access to the Part VII powers over maintenance, custody and settlement of property for a customary marriage.
Section 1(1) of that Act defines “customary marriage” as a marriage of a kind referred to in Part II of the Marriage Act, so the exclusion is precise.
Note what remains available. Child maintenance, parenting orders and affiliation proceedings under the Lukautim Pikinini Act 2015 do not depend on the Matrimonial Causes Act, and section 3(2) of that Act preserves the jurisdiction of a court of summary jurisdiction to make orders about the maintenance of wives and children, custody and access, and separation orders.
Annulment under section 5(3)
Where a marriage or purported marriage by custom has been entered into in contravention of this section, a Local Court may, on application by or on behalf of the woman at the first reasonably practicable opportunity, order that the marriage be annulled as from the date of the order, and may make such further or other order — whether to adjust property rights as though the marriage were dissolved in accordance with custom, or otherwise — as to it seems just.
It requires a contravention of section 5. That means a marriage entered into despite an order forbidding it under section 5(1). Where no order was made, section 5(3) does not apply — though the woman may seek an order under section 5(1) and, if the marriage then proceeds, an annulment.
Only the woman may apply, or someone on her behalf.
Annulment is from the date of the order, not from the beginning. The marriage is treated as having existed until then — which is why the section provides for property adjustment.
Dissolution in accordance with custom
Because section 3 makes the creation of a customary marriage a matter of custom, the same is true of its dissolution. What custom requires is a question decided under the Customs (Recognition) Act (Chapter 19) and Schedule 2 of the Constitution.
Customary dissolution characteristically involves the two families, a settlement of the position, and commonly the return of bride price in whole or part — see bride price. There is no register and no decree.
Note that section 5(3) itself refers to adjusting property rights “as though the marriage were dissolved in accordance with custom” — the Act assumes that customary dissolution exists and carries property consequences.
Because customary dissolution leaves no document, a party who later needs to prove they are unmarried — to remarry, to claim an estate, to obtain a passport or a benefit — may struggle.
Two answers exist:
- Obtain a declaration from a court that the marriage has been dissolved by custom; or
- Have the parties go through a Part V ceremony under section 71(8) while the marriage subsists, so that any future dissolution produces a decree absolute and a certificate.
A person who remarries on the assumption that a customary marriage was dissolved, when it was not, risks bigamy under section 57 of the Marriage Act and a void second marriage under section 17.
Converting to a statutory marriage first
Because the Matrimonial Causes Act does not reach a customary marriage, couples who want access to that Act’s machinery must first bring their marriage into the statutory system.
Section 71(8) of the Marriage Act allows parties to a customary marriage to go through a Part V ceremony with each other, provided neither of them is a party to any other subsisting customary marriage.
Once that is done the marriage is a Part V marriage, and if it later breaks down the full apparatus becomes available: a petition for dissolution, a decree absolute with a certificate under section 61, orders for maintenance, custody and settlement of property under Part VII, enforcement under Part X, and protection against transactions intended to defeat claims under section 93.
That is a substantial practical reason for a customary couple with property or children to consider a Part V ceremony while the marriage is subsisting.
Where the marriage was never valid
Annulment and dissolution both assume a marriage existed. Where the requirements of the applicable custom were never satisfied, there was no customary marriage at all, and what is needed is a declaration to that effect rather than an annulment.
That is a different question from the void marriage provisions in section 17 of the Marriage Act, which apply to marriages solemnised under Part V. A decree of nullity under the Matrimonial Causes Act is the corresponding remedy for a statutory marriage.
Where children are involved, orders about their care are available in the Family Court under the Lukautim Pikinini Act 2015, independently of whether the marriage is annulled or dissolved — see parenting orders and child maintenance.
Sources
- Marriage Act (Chapter 280) — ss 3, 5, 17, 57
- Matrimonial Causes Act (Chapter 282) — ss 4, 17, 61, 72–79, 93
- Lukautim Pikinini Act 2015; Constitution — Schedule 2; Customs (Recognition) Act (Chapter 19)
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.