The authorities are clear that even desertion or adultery are not blameworthy conduct to render the dissolution of a customary marriage; they merely are a reason for marital breakdown, an acting judge said in finding that the customary marriage entered into by a couple in 1978 was still enforced.
The first wife of a man who died in 2023 turned to the Eastern Cape High Court to declare the deceased’s marriage to his second wife in terms of civil law null and void.
Although the first wife and the deceased parted ways in 1998, he had no right to marry his second wife 19 years later, the first wife said.
Her argument was based on the fact that he was still married to her when he remarried.
Acting Judge M Mhambi commented that this case deals with an important aspect in legal jurisprudence; the question is how a customary marriage should be dissolved.
The question raised was whether the desertion of the matrimonial home by either of the spouses dissolves the customary marriage.
To answer the question raised, the court took a closer look at the Recognition of Customary Marriages Act.
The court was told that in 1978, emissaries from the deceased’s family were sent to the first wife’s family for lobola negotiations.
The first wife said the lobola paid included several cash payments ranging between R10 and R20, as well as seven live cows.
She was handed over to the family of the deceased, and they had three children. They had separated in 1998 while the deceased was working at the Welkom mines.
The customary marriage between the deceased and the first wife was not registered until he died in 2023.
When the first wife wanted to register the marriage after his death, she was told by the authorities that he was married in terms of civil law to his second wife. The first wife said this was the first time that she had heard about this.
She said she did not give the deceased consent to marry the first respondent, and in any event, he was still married to her.
In countering these arguments, the second wife said she fell in love with the deceased in 1999, and he visited her home in Swaziland.
According to her culture, the deceased was made to pay for a black and white heifer before he could be allowed to marry her, which he did.
The second wife said that the deceased assured her he no longer had a wife, as he had “expelled” his first wife.
According to her, they had a traditional wedding ceremony, which was registered, and they too had three children.
Judge Mhambi said certain provisions of the Constitution put it beyond doubt that the basic law requires that customary law should be accommodated, not merely tolerated, as part of South African law, provided the particular rules or provisions are not in conflict with the Constitution.
While the marriage between the first wife and the deceased was never registered, the judge said it is a matter of fact and the law that the non-registration of customary marriage does not nullify it.
The Act is clear that a customary marriage is dissolved by a court by a decree of divorce. Absent a decree of divorce issued by a competent court, a customary marriage subsists and remains valid, the judge said.
“Clearly, the customary marriage does not dissolve because the parties to it feel it is irretrievably broken down…” the judge said in ruling in favour of the first wife.
