Introduction: Understanding Customary Marriages and Polygamy in South Africa

Customary marriages are an integral part of South African society, reflecting the traditions and values of many communities. Unlike civil marriages, which are strictly monogamous, customary marriages may be monogamous or polygamous — meaning a man can have more than one wife, provided certain legal requirements are met. The Recognition of Customary Marriages Act, 120 of 1998 (RCMA), was enacted to protect the rights of all parties in such marriages, especially women, and to clarify the proprietary (property) consequences of these unions.

This article explains the legal principles governing customary marriages, discusses key court cases that have shaped the law, and provides practical guidance for those entering into polygamous unions.

Legal Principles: The Recognition of Customary Marriages Act

Monogamous vs. Polygamous Customary Marriages

• Monogamous Customary Marriage: If a man marries only one wife under customary law, the marriage is automatically “in community of property” unless an antenuptial contract (ANC) is signed beforehand. This means all assets and debts are shared equally between spouses.
• Polygamous Customary Marriage: If a man wishes to marry a second or subsequent wife, he must obtain a High Court order approving a written contract that sets out how property will be shared among all wives. This contract protects the proprietary interests of all spouses.

Requirements for Valid Customary Marriages

To be valid under South African law, a customary marriage must:

• Be negotiated and celebrated according to the customs of the relevant community.
• Involve parties who are both over 18 years old and capable of consenting.
• Not be entered into if either party is already married under civil law (civil marriages are strictly monogamous).

Section 7(6): Protecting Property Rights in Polygamous Marriages

Section 7(6) of the RCMA is crucial for polygamous unions. It requires:

• The husband to apply to the High Court for approval of a written contract before marrying another wife.
• The contract must detail how property will be divided among the husband and all wives, both current and future.
• The court will only approve the contract if it is satisfied that the interests of all spouses are protected.

Case Law: How the Courts Have Interpreted the Law

1. Mayelane v Ngwenyama and Another [2013] ZACC 14

Facts

Ms Mayelane married Mr Moyana in 1984 under customary law. In 2008, Ms Ngwenyama also married Mr Moyana, allegedly without Ms Mayelane’s knowledge or consent. After Mr Moyana’s death, both women sought recognition of their marriages and the right to inherit from his estate.

Court’s Decision

• The Constitutional Court held that, under Xitsonga customary law, the consent of the first wife is required for a valid subsequent customary marriage.
• The Court found that Ms Mayelane’s marriage was valid, but Ms Ngwenyama’s marriage was invalid because she had not obtained the first wife’s consent.
• The Court also clarified that while Section 7(6) does not affect the validity of the marriage itself, it does determine the property consequences: if the required contract is not in place, the subsequent marriage is out of community of property, meaning the new wife does not automatically share in the joint estate.

Key Takeaways

• First wife’s consent is a material requirement for the validity of a subsequent marriage in some customary law systems.
• Section 7(6) protects the property rights of all wives, but non-compliance does not necessarily invalidate the marriage; it affects property sharing.

2. Molokane v Williams and Others [2023] ZAGPJHC 1225

Facts

This case involved two women, both claiming to be the customary wives of the deceased. The first marriage was properly concluded under customary law. The second marriage took place without a court-approved property contract as required by Section 7(6).

Court’s Decision

• The court confirmed that both marriages were valid under customary law.
• However, because the husband had not complied with Section 7(6), the second marriage was deemed to be out of community of property.
• The first wife retained her 50% share of the joint estate, and the second wife could not claim a share in the joint assets.

Key Takeaways

• Court approval of a property contract is mandatory before entering a further customary marriage.
• Failure to comply means the second marriage is out of community of property, protecting the first wife’s interests.

Conclusion: Practical Implications and Guidance

Customary marriages, especially polygamous ones, are legally recognised in South Africa but come with complex legal requirements. The RCMA and recent court decisions aim to protect the rights of all spouses, particularly women, by ensuring that property is fairly divided, and that no wife is disadvantaged when a husband takes another wife.

Practical Steps for Compliance

If you are considering entering into a polygamous customary marriage:

• Obtain Consent: Ensure the consent of the existing wife or wives, as required by customary law and recent court rulings.
• Draft a Property Contract: Prepare a detailed written agreement specifying how property will be shared among all spouses.
• Apply to the High Court: Secure court approval of the contract before marrying another wife.
• Register the Marriage: Register all customary marriages with the Department of Home Affairs to avoid disputes.

Information to Include in the Property Contract

• Full names and ID numbers of all parties.
• List of current assets and liabilities.
• How property will be divided during the marriage and upon divorce or death.
• Maintenance and inheritance arrangements.
• Consent of all existing wives.

Why Compliance Matters

• Protects the rights and interests of all wives and children.
• Prevents future legal disputes over property and inheritance.
• Ensures that all marriages are legally recognised and enforceable.

Customary marriages are a living part of South African law. By following the correct legal steps, all parties can ensure their rights are protected and avoid costly disputes in the future.