Answer to a question from a reader

If a couple is separated but not divorced, can the husband remarry?

The short answer

Not without the first wife and the court's permission

The whole question

Dear Athalie

My father only partially paid lobola for my mother. They later separated but didn't divorce. He married his current wife in a civil ceremony without my mother's permission. Is this marriage legal? My mother died 10 years after my parents' separation. 

If my father dies without a will, how much of his estate am I entitled to as his only child from his marriage with my mother? If there is a will, would I be able to contest it for my mother's share of the estate?

The long answer

The Recognition of Customary Marriages Act of 1998 basically gave women in customary marriages the same constitutional rights as men, such as being able to inherit and own property, which they had previously been denied. A customary marriage should be registered at Home Affairs within three months to ensure that there is proof that the marriage took place, but marriages that are not registered are still valid, though more difficult to prove. 

What the Recognition Act said was that the couple must have agreed to marry, that both should be 18 years or older, and that the marriage process should be conducted in accordance with cultural traditions. There have been a number of court cases involving exactly what cultural traditions make a customary marriage legally valid because different communities have different traditions. But the courts have recognised that customary law is a living and evolving thing, and so courts have to go into the particular circumstances of each marriage to decide if there was a valid marriage or not. 

 But what is agreed and clear is that:

  • Since the Constitutional Court judgement of 30 November 2019, any customary marriage after the Recognition Act came into force in 2000 is held to be in community of property, unless the couple has taken out an antenuptial contract.

  • Although lobola negotiations between the two families are a necessary part of the process of a valid customary marriage, the fact that the lobola has not been fully paid is not a sufficient reason to say the marriage does not exist. So, the fact that your father did not complete his lobola payments does not mean he was not married to your mother.

  • A customary marriage can only be dissolved by divorce on the grounds of irretrievable breakdown of the relationship, and this divorce order must be granted in court. So, a separation does not constitute divorce in the case of your parents.

  • A person in a customary marriage may not marry someone else in a civil marriage. So, it would seem that your father’s second marriage was not valid because he had not divorced your mother.

  • If he wanted to marry his second wife under customary law, he would have needed the court’s permission to do so, and your mother’s permission would have been required to get the court’s permission.

In terms of the Intestate Succession Act of 1989, if your father does not leave a will, you should stand to inherit as his descendant if you were his only child. If he had other children, all his children, including you, would stand to inherit whether or not he was legally married to the other children’s mother. The Intestate Succession Act does not make a difference between legitimate and illegitimate children.  

As your parents were married in community of property, on the death of one spouse, the joint estate is dissolved and the estate has to be wound up with all the debts being settled. After all the debts have been settled, your father, as the surviving spouse, would have had a claim to 50% of whatever was left of the joint estate. Your mother’s 50% would be inherited by you as her descendant in terms of the Intestate Succession Act. 

But as your mother died ten years after separating from your father, and was not acknowledged as his legitimate wife at the time, it may well be a lengthy and difficult business to contest a will that your father might make. You would need to seek legal advice to help resolve all the issues you have raised. 

You could contact the Women’s Legal Centre Trust, based in Cape Town, on 021 424 5660 or go to the following address:

2nd Floor, 5 St Georges
St Georges Mall
Cape Town

You could also contact Legal Aid, which is a means-tested organisation that must assist people who cannot a lawyer. You can contact them here:

  • Legal Aid Advice Line (Toll-free): 0800 110 110

  • Please-Call-Me number: 079 835 7179

Wishing you the best,

Answered on March 3, 2022, 3:42 p.m.

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