Validity of Polygamous Customary Marriages
By: Allen West
Ever since the promulgation of the Recognition of Customary Marriages Act, 120 of 1998, (the Act) namely 15 November 2000, uncertainty prevailed as to what requirements must be adhered to for the validity of a polygamous customary marriage concluded after 15 November 2000.
Finally, the Constitutional Court has provided legal certainty in this regard (see Ngwenyama v Mayelane and Another (474/2011)  ZASCA 94).
The Constitutional court held that the requirements for a valid polygamous customary marriage are contained in section 3 of the Act, which reads as follows:
“For a customary marriage entered into after the commencement of this Act to be valid –
(a) the prospective spouses ‑
(i) must both be above the age of 18 years; and
(ii) must both consent to be married to each other under customary law; and
(b) the marriage must be negotiated and entered into or celebrated in accordance with customary law.”
It was thus held that should the above requirements be met; the marriage is valid and binding. However, the court further held that the consent of the first wife is also a requirement for the validity of the marriage.
In considering whether section 7(6) of the Act, which reads as follows:
“A husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of this Act must make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriages.” (my underlining)
is peremptory or not, the court held as follows:
“To interpret it as imposing validity requirements over and above those set out in section 3 would undermine the scheme of the Recognition Act. For those reasons we endorse the Supreme Court of Appeal’s interpretation of section 7(6).”
The court held that the provisions of section 3 provide the requirements for a valid marriage, and the provisions of section 7 merely govern the matrimonial property regime of such marriage.
The Supreme Court of Appeal held that a marriage concluded without an order of court, as provided for in section 7(6) of the Act, is valid and deemed to be a marriage out of community of property.
It is also of importance to note that section 4(9) of the Act clearly provides that the non‑registration of the marriage does not in any way affect the validity thereof.
During the Annual Conference of Registrars, the question of the citation of a man who had concluded a customary marriage, being one of in community of property, and subsequent, i.e. after 15 November 2000, concluded a further marriage, without the application to court as provided for in section 7(6), was discussed. The Registrars ruled that such a person will be described in deeds and documents as follows:
Identity Number …………………………….
Identity Number …………………………….
married in community of property to one another
A……………………………………. married in terms of customary law”
It is not endeavoured in this article to try and discuss the division of the above estates on death or divorce, but it is trusted that very soon this will be a matter to be decided by the Court, given the fact that a joint estate existing simultaneously with other estates can only cause the greatest of confusion on death or divorce of either of the spouses to such marriages.