Customary marriage followed by a civil marriage to a second wife

A client asked if a man can’t marry a woman according to customary law and then later marry someone else in a civil ceremony. The answer is no.

In the matter of Modisane v. Modikwe and others, the court heard that Modisane married Modikwe in community of property according to customary law in terms of section 1, 2 and 3 of the Recognition of the Customary Marriages Act, 120 of 1998 (“The Act”).

However, Modikwe later concluded a marriage by civil rights with one Komani, the fourth respondent.

The court set aside the second marriage as invalid and unlawful, sating: “It has long been established that it is impermissible for a man who is a partner in a customary union to contract a civil marriage with another woman who is not his partner in a customary union during the subsistence of the customary union. Put differently, it is competent for a man who is a partner in a customary union to conclude a civil marriage only with the woman who is his partner in the customary union. Furthermore, it is trite that a civil marriage contracted while the man is a partner in an existing customary union with another woman is a nullity. (See Thembisile v Thembisile 2002 (2) SA 209 (T) which was followed in Netshituka v Netshituka and Others (462/10) [2011] ZASCA 120)”.

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