Pretoria - Decades ago, spouses under a customary marriage enjoyed no legal protection in South Africa, but things changed drastically over the years and such unions were recognised in law.
A husband discovered this after he simply entered into a civil union with another woman while still being married to his first wife.
The wife, who hails from rural Limpopo, had no idea her husband was married under her nose until her son by coincidence found the marriage certificate in his father’s bag.
The woman turned to the Gauteng High Court, Pretoria, where she was successful in an application to have her husband’s marriage to the second wife declared null and void.
The applicant (who cannot be named as the matter involves their marriage) told the court that she was not going to simply allow her husband to sidestep his obligations towards her under customary law.
Acting Judge MK Phooko, in the opening to his judgment on this subject, said in the past, being married in terms of customary law did not affect the status of the marriage and/or the proprietary consequences arising from such marriage if the parties eternally lived together as husband and wife.
The problem arose only when the commitment of either party to a customary law ended and the other party opted to pursue a different future with another person.
“For various reasons, things in life happen to change and each individual takes a completely new route in terms of whom they want to be with, committed to, and/or share their lives with for the remainder of their stay on Earth.
“Consequently, it would occur that one party to a customary marriage enters into a civil marriage with someone else without the knowledge of their customary law spouse,” the judge said.
The consequences of a subsequent civil marriage by either party with another person were dire, as customary marriages were not legally recognised. The effect of a civil marriage on the customary marriage was that it dissolved the customary marriage.
However, this is no longer the position, as the Customary Marriages Act has brought about a legal framework for the recognition of customary marriages.
In this case the parties entered into a customary marriage in 1970 at Mohlabaneng village in Limpopo. Around 2016, the husband started to visit another woman in the village.
When his wife asked him about the affair, he told her not to worry as he loved her (the wife) and would not leave her.
But things changed when their son searched for his mother’s ID in his father’s bag and found the marriage certificate regarding wife number two.
The wife confronted her husband and he apologised to her. He said he would “sort it out”, but never did. The wife received advice regarding the consequences of the civil marriage, especially that she may lose out on their joint estate.
She was also told that since the Customary Marriages Act, her husband may not simply get married again behind her back while still married to her.
The husband at first wanted to oppose this application, but later decided not to join the proceedings.
When asked by the judge as to why the wife never registered the customary marriage, her advocate said that she lived in “deep rural areas and is illiterate”.
Judge Phooko, in declaring the civil marriage to wife number two invalid, said the husband unilaterally decided to enter into a civil marriage behind his wife’s back. Thus, the second marriage was invalid.
Pretoria News