Can A Man Have More Than One Wife In South Africa?

1. The law on polygamy

1. Polygamy is generally illegal.  Polygamy is however, a well-known practice that has been part of Customary Law in South Africa for many years.  Customary Law means the customs and usages traditionally observed amongst the indigenous peoples of South Africa, and a customary marriage means a marriage concluded in accordance with Customary Law.  The Recognition of Customary Marriages Act was adopted in 1998 in order to provide for the recognition of customary marriages, and to specify the requirements for a valid customary marriage, and also to regulate the registration of customary marriages, and to provide for the equal status and capacity of spouses in customary marriages, and to regulate the proprietary consequences of customary marriages and the capacity of spouses of such marriages, amongst other things.

1. In order for a customary marriage to be valid, the requirements of the Recognition of Customary Marriages Act must be complied with.  This means that the customs of the particular group where customary marriages have been legal for hundreds of years, must be legally carried out in terms of custom.  There is usually a customary ceremony and payment of lobola.  Each group has a different custom.  In terms of the Act, a marriage which is a valid marriage at Customary Law, and existing at the commencement of the Act in 1998, is recognised as a marriage.

1. Any customary marriage entered into after the commencement of the Act, which complies with the requirements of the Act, is valid and is also recognised as a marriage.  If a person is a spouse in more than one customary marriage, all valid customary marriages entered into before and after the commencement of the Act, are for all purposes recognised as marriages.

1. In terms of the Recognition of Customary Marriages Act, all spouses to a customary marriage have a duty to ensure that their marriage is registered with the Department of Home Affairs.

1. All spouses married in terms of Customary Law are automatically married in community of property.  A husband who is already married in a customary marriage, and who wishes to enter into a further customary marriage with another woman, and the parties require that an Antenuptial Contract applies to their marriage, must make an application to the Court to approve a written contract which will regulate the future Matrimonial Property System of his marriages.

1. The Constitutional Court has also recently ruled that the first spouse must consent to the second marriage in order for the second marriage to be valid.  The reason for this is partly based on customary law and partly based on the provisions of the Constitution.  Given that marriage is a highly personal and private contract, it would be a blatant intrusion on the first partner to introduce a new member to that union without obtaining the first partner’s consent. The Court based this decision on developing Customary Law in line with the Constitutional requirement for equality and dignity of wives in customary marriages.

1. The Regulation of Customary Marriages Act provides that one of the requirements for a valid customary marriage entered into is that “the marriage must be negotiated and entered into or celebrated in accordance with Customary Law.”  The advancement of human dignity and equality is one of the founding values of the Republic.  The Constitutional Court found that the Recognition of Customary Marriages Act is thus premised on a customary marriage that is in accordance with the dignity and equality demands of the Constitution.

1.  In the case where there is no Will, what rights does the second/third wife have to protect herself?

1. In terms of the Recognition of Customary Marriages Act, the second, third and fourth wives’ marriages are valid, if the marriages comply with the customs and norms pertaining to that particular group, including the payment of lobola, for example, and are registered with the Department of Home Affairs.  In order to protect herself, the second, third or fourth wife must ensure that the marriage is registered and that she obtains the consent of the preceding wives for the marriage.

1. Where there is no Will, and the marriage is registered in terms of the Recognition of Customary Marriages Act, and is a valid polygamous marriage, all wives will be treated equally and will inherit in terms of the Intestate Succession Act.  This means that all wives who have been validly married in terms of Customary Law, as set out in the Recognition of Customary Marriages Act, and where the first wife has consented to a subsequent marriage, will qualify as wives and will share from the husband’s estate on an equal basis.  All wives will inherit in terms of the Intestate Succession Act.  This means that if a husband is survived by spouses, but not by descendants, the spouses shall inherit the intestate estate equally.  If the husband is survived by spouses, as well as descendants, each spouse shall inherit a child’s share of the intestate estate, or so much of the intestate estate as does not exceed in value R250 000.00, whichever amount is the greater.

1. Evolution of Customary Law

1. Customary law is evolving all the time, depending on the customs of different cultural groups.  There are no finite principles with regard to Customary Law, as customs are evolving all the time and Customary Law is interpreted in terms of the Constitution and customary law as it develops.

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