does anyone know about customary marriages in south africa??

Question

I would just like to know if a wife in a customary marriage has to give her consent for her husband to enter into a customary marriage with any additional wives??

Answer 1

I'm a South African and did a course in Customary Law at the University of Stellenbosch. It was called "Inheemse Reg", the Law of the South African Black People. The answer to your question is yes and no. The husband doesn't need any permission from his wife to enter into such a marriage with another woman. Legally, however, it is considered that she gave her consent by not opposing it.

In South Africa the Recognition of Customary Marriages Act 1999 retrospectively recognises as valid, all customary marriages so long as they are registered. Further, s2(3) of the Act provides that, if a person has entered into more than one customary law marriage, all valid marriages entered into before the commencement of the Act, are recognised. The Act similarly recognises all customary marriages entered into after the commencement of the Act where the High Court approves a written contract regulating the future matrimonial property systems for marriages (both present and prospective spouses must be joined in the application). This is a major departure from the previous legal position because customary marriages being potentially or actually polygamous, were considered against public policy and were not recognised under the formal law. This reversal was due to a recognition that it was impossible to enforce the prohibition and due to the fact that wives usually consent to the polygamous marriage. Where a state has produced formal laws to control recognition, this will establish a general framework under which international recognition can be managed. Where there is no formal rule within the lex loci celebrationis, a forum court could hear expert evidence on whether the marriage would be accepted as effective (see the public policy of favor matrimonii which creates a rebuttable presumption in favour of the validity of any marriage) but it will be difficult for the parties to justify their failure to comply with the local laws that unambiguously would have created a valid marriage.