This is the second part in this series wherein we debunk some myths on customary marriages. There are a lot of myths and opinions in public discourse with regards to principles surrounding customary marriages. In South Africa we have a concept referred to as ‘living customary law’ which denotes, recognises and is awake to the changing requirements, rules and aspirations of indigenous peoples and the communities in which they live in. Customary practices change over time, what is accepted as custom is susceptible to change as well, hence the term ‘living.’ In this second series of this discussion, we will debunk some myths and share insights with regard to customary marriages.
I have one customary wife and I want to marry another, what should I do?
Where the spouses are married under customary law and the husband, for example, wishes to marry another wife under customary law, an application must be made to the Court for leave to enter into an agreement to provide for the future matrimonial property system of the spouses. This is as per section 7 (6) of the Recognition of Customary Marriages Act 120 of 1998 (as amended).
7 (6) 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.
Can a traditional leader dissolve a customary marriage?
Section 8 (1) of the Recognition of Customary Marriages Act 120 of 1998 (as amended) provides that only a Court of law may dissolve a customary marriage. We therefore urge spouses in customary marriages that should they decide to terminate their marriage, they ought to seek the assistance of legal practitioners in order to dissolve the marriage through the Court. Mere separation and entering into other marriages thereafter is ill-advised. In the case of Ramuhovhi and Others v President of the Republic of South Africa and Others (CCT194/16)  ZACC 41 the Court noted that the Supreme Court of Appeal had nullified a civil marriage between a deceased and his purported wife (Munyadziwa), because it had been concluded without dissolving customary marriages entered into prior by the deceased.
How is a customary rule determined?
The case of Van Breda And Others v Jacobs And Others 1921 AD 330 is helpful in this regard. In this case, the Court noted some principles which will serve as guiding factors to determine if a custom can be recognised as a legal rule. That it must be reasonable, must have existed for a long time, must generally be recognised and observed by the community as well as the contents of that customary rule being certain and clear.
Can a spouse in a customary marriage validly enter into a civil marriage with another party?
No. A civil marriage is monogamous by law, and no spouse married under the civil law marriage system may legally enter into another marriage. Customary marriages on the other hand, allow polygamy.
For more insights on customary marriages kindly check the first part on our website.
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