Desertion, for whatever time, may be grounds for a divorce but it is not and cannot of itself constitute or prove divorce or that a marriage is dissolved.

This is according to an acting judge who determined a legal tussle between two women – one married under a traditional marriage and the other under civil marriage – to a man who died intestate, reports The Star.

Hilda Sedinjane turned to the Limpopo High Court (Polokwane) for an order that she be recognised as the true wife of Seabela Malatji. They got married in 1988 and concluded a customary marriage, as evidenced by a lobola certificate.

Four children were born out of the marriage but the couple drifted apart, resulting in the applicant (Sedinjane) leaving the matrimonial home around late 1992.

Anare Malatji (the respondent), who married the deceased in 2014 under a civil marriage, did not dispute that the applicant and the deceased were married, but she said that as the applicant had left the house at the time, the marriage no longer existed.

Malatji, who was appointed as the executor of the deceased’s estate, said her civil marriage was the only valid marriage.

She held that the applicant's marriage has been dissolved as the applicant had left the house eight years before the Recognition of Customary Marriages Act came into effect in November 2000. 

Under the Act, all marriages at the commencement of the Act are valid.

Acting Judge Malose Monene said the court was struggling to understand on what grounds the respondent claimed that the marriage between the deceased and the applicant was dissolved.

‘We are left none the wiser as to where, when and how the dissolution of the customary marriage is alleged to have happened. One is left with an impression that the first respondent (widow two) takes the inexplicable quantum leap in logic that the mere admitted walking out of the matrimonial home by the applicant in 1992 is proof of divorce.’

The Star notes the judge said desertion was not the same as divorce and ordered that the applicant’s customary marriage stood and that she be declared the lawful wife.

Full report in The Star