(i) Validity of Two Customary Marriages
Commentary:
In South Africa, the recognition of customary marriages is governed by the
Recognition of Customary Marriages Act (RCMA) of 1998. This Act allows for the
formal recognition of marriages conducted in accordance with customary law. Under
the...
, (i) Validity of Two Customary Marriages
Commentary:
In South Africa, the recognition of customary marriages is governed by the
Recognition of Customary Marriages Act (RCMA) of 1998. This Act allows for the
formal recognition of marriages conducted in accordance with customary law. Under
the RCMA, a person can only be married to one person at a time, meaning that a
second customary marriage is not valid if the individual is already in a valid marriage.
Single Marriage Rule: Section 2(1) of the RCMA states that a customary marriage
must be monogamous unless the customary law applicable to the parties allows for
polygamous marriages. Therefore, if Z was married to R under customary law and
did not have the required consent or follow the procedures for a second marriage, Z
could not legally have two valid customary marriages simultaneously.
(ii) Non-Disclosure and Tsonga Customary Law
Commentary:
Non-Disclosure: If R claims that Z never disclosed his marriage to P and that this
marriage occurred without R's consent, this could be significant. Customary law often
requires the consent of the senior wife (or the principal wife) before a subsequent
marriage can be valid. If Tsonga customary law indeed requires the senior wife's
consent and such consent was not given, then R’s marriage to Z could be the only
valid marriage under this customary law.
Tsonga Customary Law: If Tsonga customary law does not recognize the second
marriage contracted without the senior wife’s consent, then Z's marriage to P would
not be valid under that specific customary law. Thus, R's marriage to Z would be
recognized as valid, assuming all customary practices were followed.
(iii) K’s Non-Recognition of R and P
Commentary:
Parental Consent: In many customary systems, parental consent and negotiation are
crucial for the validity of marriages. If Z’s father, K, did not participate in or consent to
the marriages, he might dispute their validity based on lack of traditional approval.
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