The procedure to enter into a polygamous marriage

In Africa, traditionally a polygamous marriage is well known and it is still being practiced today.

The introduction of the South African Constitution has brought about new changes that influence how things are done, this includes traditional customs. The Recognition of Customary Marriages Act of 1998(no. 120) stipulates the procedure to enter into a customary marriage.

This article will look at details of the Customary Marriages Act and also case law around polygamous marriage, especially on the consent of the parties entering into this type of marriage.

1. Polygamous marriage explained

A polygamous marriage is a marriage where a husband has more than one wife at a time. In a traditional sense, it is a way to have a stronger and bigger family. The practice of polygamy is, in the main, easier for men that have wealth and can afford to maintain more than one household. Why would you want to have more than one wife if you are poor?

2. The procedure for a polygamous marriage

The Act states in terms of s7(6):

A husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of this Act must make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriages.

The court will then ensure that:

1. There is a fair distribution of the estate.
2. It will take into account the relevant circumstances of the family group.
3. Allow amendments to the marriage contract.
4. Grant the application with certain conditions.
5. Refuse the application if the interested of the parties involved will not be protected.

I would go on to add that consent of the wife or wives is crucial, and further that the final decision lies with the court.

3. Case Law: consent of the current wife to enter into a polygamous marriage

In the case, Mayelane v Ngwenyama and Another 2013 (4) SA 415 (CC) it was decided that the consent of the wife in a marriage is required for a polygamous marriage to be valid. In this case, the husband Mr Hlengani Dyson Moyana married the first wife Ms Modjadji Florah Mayelane (Applicant) in 1984. In 2008, he married Ms Mphephu Maria Ngwenyama and he died months later.

At the Constitutional Court, it was decided that consent of the first wife is vital to validate the polygamous marriage – this is based on the equality principle.

The court stated as follows:

“Are the first wife’s rights to equality and human dignity compatible with allowing her husband to marry another woman without her consent? We think not. The potential for infringement of the dignity and equality rights of wives in polygymous marriages is undoubtedly present.”

Conclusion

A husband can only enter into a polygamous marriage if 1) he is already in a customary marriage as per the Act(see s10(4) of the Act); 2) if the polygamous marriage has been validated by a court procedure; and 3) if the consent of the wife in the marriage is a obtained.

It is crucial that the law is observed to validate the polygamous marriage. To ensure compliance, consult an attorney for the proper advise, ensure that there is consent from your current spouse, and be sure that you are rich enough to take care of your wives.