Answer to a question from a reader

What are the rights of children born in a polygamous marriage?

The short answer

If the first wife agreed to the second marriage, the second wife and her children have the same protection and rights.

The whole question

Dear Athalie

How does the law protect the children that I have with my second wife in a polygamous marriage?

The long answer

Thank you for your email asking how the rights of children born to a second wife in a polygamous marriage are protected.

Before the Recognition of Customary Marriages Act (RCMA) was passed into law on 15 November 2000, women in customary marriages had the status of minors, and could not own or inherit property in their own right. But after the RCMA became law, a customary wife had equal rights and status, could buy and sell property, enter into contracts and go to court. She could decide together with the husband what should happen to their property. Customary law wives now had the same protection and rights as civil law wives.

All customary marriages are regarded as being in community of property except if the couple specifically makes another arrangement through an ante-nuptial contract.

If a husband wishes to marry a further wife under customary law, he must first get the agreement of his existing wife before he may enter into a further customary marriage. If he doesn’t do this, the second marriage will still be recognised but it will be a marriage out of community of property. In other words, the second wife will not own the property of her husband jointly with him if the first wife has not given her consent to the marriage. 

Section 7(6) of the RCMA says that, before he can marry a second wife, a husband must apply to the court to approve a contract that sets out how the marriage property is to be divided between the spouses. All the names and dates of birth of the children are also given to the court and all the wives must agree that the way the property is to be divided between them is fair. The court must take into account the interests of all the spouses and the children, and protect all their property rights before deciding if the contract is fair. If the court approves the contract, the property rights of the husband and the wives will then be in terms of the contract only.  

In terms of the RCMA, only the court can grant a decree of divorce, and the only grounds for divorce are that the marriage has broken down to the extent that it cannot be restored. The court will decide who should get custody of the children based on the best interests of the children. 

Wishing you the best,

Answered on Sept. 3, 2021, 2 p.m.

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