The process of entering into a legally protected polygamous marriage

By Drum Digital
07 September 2015

All customary marriages became legally recognised from 15 November 2000.

Last week I posted about the co-existence of a customary marriage and civil marriage with different spouses. I received a lot of inbox messages regarding this and also regarding the polygamous marriages between customary spouses.

I thought it was important for me to explain the process of entering into a legally protected polygamous marriage.

All polygamous marriages that were entered into before this day became legally recognised but all polygamous marriages that were and/or are entered into after this date have to comply with certain legal requirements, the major one being that the husband has to get a court-approved marriage contract before he can marry another wife. This is because customary marriages are automatically in community of property and before a husband marries a second wife, the first wife must be given half her share of the marriage assets. A husband cannot enter into a second marriage with half the share of the first wife.

Accordingly, the court process is to make sure that the first wife's rights and entitlements are protected and she is not cheated out on what is legally hers. The husband must also draft a new marriage contract which will govern the polygamous marriage and this contract must be approved by the court. The contract must then be registered at the deeds office.

Secondly, depending on the cultural requirements, a husband must get the consent of the first wife to take a second wife. The first wife must consent and not just merely be informed. The first wife must also be named as one of the parties (responded) in the court proceedings and she has a right to challenge the court application.

If you are in a polygamous marriage and the marriage was entered into before 15 November 2000 and all customary processes were complied with, all the marriages will be protected. If you entered into a polygamous marriage from 16 November 2000 and all the customary processes were complied with but the husband did not go to court to have the new marriage contract approved by court, the second wife will not be legally protected. Only the first wife will be protected.

Nthabiseng Monareng

Author of Concubines: The Legal Implications of Cohabitation and Customary Marriages on South African Black Women

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