Rights of Widows in Customary Marriages: Court Recognizes Second Wife Customarily Married
In the kaleidoscope of South African law, the vibrant tapestry of customary marriages unravels a fascinating legal landscape. The South Gauteng High Court in Johannesburg recently illuminated the legal standing of two women, both married to the same man. This landmark ruling establishes that they are not only recognized as legal widows of the deceased but are also entitled to register both their marriages if they so desire. For those who tread the path of a customary marriage in South Africa, there are certain prerequisites to keep in mind.
A valid customary marriage hinges on compliance with the customs and traditions of the specific community. One crucial requirement is that all surviving spouses of a customary marriage are eligible to approach the Department of Home Affairs. There, they can initiate the process of registering their marriage, a vital step, especially if they wish to be appointed as executors in the estate of their late spouse.
This legal revelation was brought to light when Mpho Molokane sought to challenge the validity of Rosy Williams' marriage to their shared husband, Alfred Mohlale. Upon Alfred Mohlale's passing in 2015, Mpho took the initiative to register her customary marriage to the deceased with the Department of Home Affairs.
Subsequently, Rosy Williams embarked on a similar journey, only to discover that Mpho had already registered her marriage with Alfred. The unique twist in this tale lies in the fact that Rosy and Mpho are both legally married to the same man.
Rosy, in 2003, became customarily married to Alfred Mohlale and had two children with him. However, Alfred did not legally dissolve this marriage when he began living with Mpho, paying lobola for her in 2012, and having two children together. Therefore, the court recognized both Rosy and Mpho as the legal widows of the deceased, and they are entitled to register both their marriages with the Department if they so choose.
Procedurally, Rosy, being the first widow, was expected to register her marriage first. However, due to Mpho's earlier registration, the National Population Register required a court order issued under section 7(6) of the Recognition of Customary Marriages Act to allow the second marriage to be registered. Mpho testified that she had no knowledge of the marriage relationship between the deceased and Miss Williams. She met the deceased in 2004, started living with him in 2008, and got married to him in 2012.
The lobola payment and a traditional ceremony marked this significant event. It was only after the deceased's passing that Mpho learned about Rosy's alleged marriage through the Master's office.
In the end, the court acknowledged that both wives were customarily married but recognized two different matrimonial regimes - one in community of property and the other out of the community of property. It's important to note that only a court may dissolve a customary marriage. Full judgment can be accessed here.
For those seeking legal advice and guidance on their customary marriage or any legal matters, we encourage you to reach out to MJM Attorneys. You can contact them at info@mjmattorneys.co.za or give them a call or WhatsApp at 072 772 3401 or 015 023 0013. In the ever-evolving landscape of South African law, it's crucial to stay informed and seek professional guidance when needed.