CUSTOMARY MARRIAGES – DIVORCE AND REMARRIAGE

Does a second customary marriage override the first marriage?

In the Supreme Court of Appeal, and in the matter of Matsatsi Dinah Tiny Monyepao v Mokgaetji Maria Ledwabaand Others, the following question arose: can a civil marriage invalidate a customary marriage (entered into before the civil marriage)?

In this matter, the appellant (the second wife) had married the deceased in terms of civil law and customary law. At the time of such marriage, the deceased was still however married to his first wife in terms of customary law. The appellant alleged that such marriage was dissolved, however, there was no factual basis or objective evidence to find that the deceased’s marriage to his first wife had been dissolved.

In terms of Section 8 of the Recognition of Customary Marriages Act, 1998 (Act 120 of 1998) (“the Act”) a customary marriage may only be dissolved by a Court by a decree of divorce.

The appellant had failed to produce any objective evidence, in accordance with Section 8 of the Act (i.e. a divorce decree) to prove that the first wife and the deceased were divorced and the Court found that the first marriage was still valid and that the subsequent marriage between the appellant and the deceased could not override the first marriage and therefore the second marriage was in fact invalid. The Court went further to declare that the second marriage was null and void and had no impact on the first customary marriage.

Section 7(6) of the Act sets out that should a party wish to enter into a further customary marriage, application to Court must be made for the approval of such further marriage. Section 7(7) of the Act sets out the considerations that the Court must and/or may take into account in considering such application.

Therefore, the abovementioned judgment by the SCA confirms that a customary marriage cannot be overridden by a second marriage which does not comply with either Section 7 of the Act (the requirement of making application to Court) or Section 8 of the Act (the fact that a customary marriage can only be dissolved by a Court).

Therefore, it is imperative that when entering into a further customary marriage, you would be required to either dissolve the first customary marriage or make application to Court to regulate the second customary marriage.