Customary marriage valid
In what a Pretoria News report calls yet another battle between two women who both claim they are the customary wives of their now-dead husband, the Free State High Court (Bloemfontein) has declared the first wife – who was married to him for 26 years and bore him 13 children – is the lawful wife.
The first wife turned to the High Court for an order forcing Home Affairs to register her marriage to her late husband, who died in 2018.
She asked the court to declare her marriage valid in terms of the Recognition of the Customary Marriage Act and to note that they were married in community of property.
She submitted a letter from the chief of the area where they resided to the court as proof that she and the dead man were indeed married.
But the second wife, who opposed the application, also issued her lobola letter to the court as ‘proof’ that she was also married to the dead man.
The second wife simply opposed the application on the basis that the dead man and the applicant were never married and consequently no customary marriage came into being.
The first wife meanwhile stated that she was married to the man in terms of Zulu customary law in July 1992.
But the court found that the first wife and the dead man had complied with all the requirements of a valid customary marriage when they got married in 1992 – whether the union was registered at the time or not.
According to the Pretoria News report, the evidence showed that the families met and concluded the marriage under Zulu custom.
The court explained that customary law is defined in the act as the customs and usages traditionally observed among the indigenous African people of SA and which form part of the culture of those people.
It added that a customary marriage means a marriage concluded as per customary law.
For a customary marriage entered into after the commencement of the Act to be valid, the prospective spouses must both be above the age of 18, and consent to be married to each other under the customary law.
The marriage must be negotiated and entered into or celebrated under customary law.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
