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Customary Law Marriages

In a recent court battle in the Gauteng High Court in Pretoria, two wives claimed they were legally married to their now-deceased husband.

The first wife said she married her husband in 1991 in terms of customary law. The second said she is the “true wife” as she had married her husband in 2007 in terms of civil proceedings.

Wife number one was at first told that her customary marriage was not registered with Home Affairs and that confirmation from a traditional authority would be required. As a result, she obtained confirmation from the Ndebele Kingdom Authorities. She maintained that her customary marriage was not dissolved by the time her husband married the second wife and said the recognition of the Customary Marriages Act made her the lawful wife.

Wife number two on the other hand said her marriage was solemnised in a public ceremony.

Judge Cassim Sardiwalla said the court must examine whether the customs, traditions, or rituals that must be observed in the negotiations and celebration of customary marriages have been complied with. These include the negotiations leading to the agreement on lobola and any other tradition, custom, or ritual associated with these.

“There is no doubt in my mind that the first applicant (wife number one) is the surviving spouse of the deceased and therefore the customary marriage entered into between them on September 29, 1991, is valid. This despite the fact that it was not registered” the judge said.

He ordered Home Affairs to register the customary marriage and expunge the civil marriage of the second wife from records.

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