Recognising and regulating polygamy in SA

Polygamy within the current context

MEN enjoy almost uninterrupted and unregulated power in all things in our society.

As an introduction to this topic, it is important to note that patriarchy is deeply embedded and impacts on the way marriage is negotiated, consented to, and solemnised.

The dawn of democracy did not automatically reverse the sexist and racist laws that existed during the pre-constitutional era.

This apartheid and colonial past have additionally resulted in a history of discrimination against interpersonal relationships black people engaged in.

Social morality was used to justify the exclusion of recognition of marriages and relationships of people who were of a different faith than Christianity; the marriages of couples who were African, black, and entered into customary marriages.

Women are not a homogenous group but are made up of diverse and intersecting identities, and therefore one uniform approach would be a narrow way of addressing the issues that women face in family law.

Women have various intersecting identities within their interpersonal relationship, their homes, families, communities and workplace.

More than 25 years after the transition to democracy, the intersecting inequalities of gender, race and class still render many women unable to access and realise their rights.

Persistent racial, gendered inequalities play a role in sustaining forms of discrimination in the South African context.

Discrimination refers to the unequal treatment of persons or groups based on their social identities and any given number of grounds such as race, age, gender, nationality and marital status.

The current legislative framework

The current legislative framework recognises polygamy under the umbrella of the Recognition of Customary Marriage Act 120 of 1998 (the RCMA).

This was one of the first pieces of legislation passed by South Africa’s democratic Parliament to give recognition to marriages entered into by millions of South Africans who, under apartheid, were purposefully excluded from recognition, regulation and protection.

Polygamy is therefore already legally recognised and regulated for those living in terms of African custom.

The codification of polygamy under African custom, however, is restricted to men, and only a man can enter subsequent marriages with women in terms of African custom.

The Constitutional Court judgment in Mayelane v Ngwenyama in 2013 ensured consent was necessitated in instances where a husband sought to enter a subsequent marriage – the court finding that without such consent the constitutional rights of the first wife to equality and dignity, among others, would be violated.

The RCMA requires that an application be brought before court for the approval of a written contract between all the parties prior to the marriage dealing with the proprietary consequences of the marriages.

Further litigation has sought to clarify issues of proprietary consequences of polygamous marriages, distinguishing between individual property and family property within each family unit to provide guidance on division when necessitated by death or divorce.

A new era and law: The introduction of the Marriages Bill 43 of 2023

Our courts have been fast in developing recognition of the discrimination that women are experiencing within family law, largely because of the lack of legislative framework, and have come to women’s assistance over the past years of our democracy to provide them with the rights that the legislation has been slow to do.

We should all welcome the department’s effort to rationalise the marriage laws pertaining to various types of marriages. We need to ensure within the legislative framework that we account for every form of marriage that may have been concluded and seek to provide as much clarity and certainty as possible.

The Marriages Bill has in part been necessitated by the Constitutional Court judgment in the case of the Women’s Legal Centre Trust v The President in which the trust sought the legal recognition of Muslim marriages and the enactment of legislation to recognise such marriages.

We were successful in our litigation challenge, and the Constitutional Court in July 2022 ordered the enactment of legislation or amendment of existing legislation to ensure that Muslim marriages are treated in the same or similar manner as other marriages, and that women in Muslim marriages have access to legal remedies in the same or similar manner as women married in terms of the Marriages and Recognition of Customary Marriages Acts.

Muslim marriages were of course historically denied legal recognition as they were considered to be contrary to the moral values of the colonial and apartheid South African state, because they were considered polygamous in nature.

Extending recognition of polygamy

The bill proposes to rectify this injustice by recognising and regulating all marriages in South Africa, including Muslim marriages that were previously excluded from the legislative framework.

Given the possible polygamous nature of Muslim marriages, the bill seeks to extend the recognition and regulation of polygamy to include not only African customary marriages, but all marriages where, in terms of custom or religion, a man seeks to enter multiple marriages.

Importantly, the bill limits the right to enter into multiple marriages to only men and so does not recognise women’s rights or same sex couples’ rights to do the same and to have their marriages legally recognised and regulated in terms of the legislative framework proposed.

The regulatory framework is familiar in that the provisions contained in the bill are similar to those currently regulating polygamous African customary marriages.

The requirement of consent of the first wife as ordered by the Constitutional Court has been incorporated into the language of the bill along with the requirement of bringing application to court for the approval of a written contract setting out the proprietary consequences of the marriages.

The application to court for the approval of the written contract is of critical importance to protect those intimate parties to the marriages, but also third parties.

The court will also need to ensure that the proposal put forward in the written contract ensures a just and equitable sharing of the assets as well as debt which is owned by all the respective parties to the marriages.

On the face of it, the requirements set out in the bill do not appear to be too onerous in nature.

From an implementation perspective, the departments have the existing systems in place already to implement what is being proposed in terms of registration.

What will be of critical importance in the implementation of the bill, however, is its use by the people to which it intends to provide recognition and protection.