‘Secret’ customary marriage costs widow her inheritance

The validity of customary marriages has come into sharp focus when a Mpumalanga mother succeeded in having her customary marriage to a now-deceased businessman husband declared valid, and his subsequent marriage declared unlawful and therefore not to be recognised by his estate. 

A lyrical judgment penned by Mpumalanga High Court deputy judge president Takalani Ratshibvumo about the behaviour of a man identified only as LM and the impact his actions had on the women he married, has drawn strong comment. 

“Without noticing the ticking clock, he had gone about falling in and out of love not knowing that his fate, or that of his assets, would one day be decided based on his decisions to fall in or out of love,” Ratshibvumo declared in his evaluation of LM’s first wife’s court application to have her customary marriage to him — six years before he died in a car crash at age 43 — recognised in law. 

Referring to the famous title sequence of long-running soapie Days of Our Lives featuring the gravelly narrative “like sand through the hourglass, these are the days of our lives ...” Ratshibvumo said: “The characters of this soap opera are so focused on falling in and out of love that they do not take note when the sand from the upper bulb of the hourglass is exhausted ... It seems this soap opera is not far from the real-life drama that unfolded in this case.” 

The judge noted that in January 2017, LM had sent representatives from his family to negotiate lobola for his marriage to the “family of his sweetheart NM”. The negotiations were conducted in terms of Sepedi and siSwati custom, with the families settling on R12,000 in cash and 13 cattle. 

The couple lived happily together and had a son, though their marriage was not registered with the department of home affairs. 

Two years after the marriage, in April 2019, LM met FN and fell in love with her. This prompted him to move out, leaving his first wife and son, and went to live with FN in her house. 

In November 2020 LM and FN got married. They had a civil ceremony at the department of home affairs and in December 2021, LM “sent emissaries to the family of (FN) to ask her hand into a marriage and to negotiate lobola on his behalf”, the court heard. Lobola was set at 10 cattle. None of these events were ever communicated to LM’s first wife, meaning she did not consent to LM’s second marriage, nor was she ever asked for a divorce. This is what prompted her to approach the court to have LM’s marriage to FN declared void after his death. 

“Nothing could have prepared Mr LM for the untimely death he met on February 6 2023, at the age of 43, following a motor collision,” the judge said. 

In arguing that her marriage to LM should be the only one recognised, FN told the court that while NM had attended the funeral, she played no role, only watching from a distance. LM’s family had accorded widow’s status to FN alone as she “ascended to the seat of chief mourner”. 

FN told the court that she had not known about LM’s marriage to NM, and asked the court to regard it to have “irretrievably broken down”. 

NM, however, “upon foreseeing a possibility that there could be benefits accruing to a spouse from pension payout from her husband’s pension contributions”, asked that the Government Employees Pension Fund be ordered to halt any payouts until the validity of LM’s marriages was decided. 

“In making this determination, the court would as such make a finding on whether the two purported marriages can co-exist alongside each other in terms of any law and what their statuses should be,” said Ratshibvumo, noting that customary marriages were recognised in law and their validity was not affected by whether they were registered. 

Men wishing to enter into a further customary marriage with another woman needed to apply to the court for approval of a written contract “regulating the future matrimonial property system of his marriages” or have his first marriage dissolved through divorce. 

RM argued that her marriage was valid, and FN’s was not, because she had not consented to it. FN argued that RM’s marriage had broken down and that her consent for the second marriage was not required according to Sepedi and siSwati customs. 

But the court found that even in a case where a first marriage had irretrievably broken down, neither party was free to enter a new marriage or claim the benefits of divorce which meant that the assets in a customary marriage remained the joint property of the husband and wife. 

“As is often the case, this question usually demands the courts’ attention after the demise of the husband, the survivors are left battling over the assets he left behind, when sand stops dropping, through the hourglass.” 

The judge pointed out that the courts had found that the consent of the first wife was a “necessary dignity and equality component” in a further customary marriage. 

This led him to order that NM’s marriage be upheld and LM’s second marriage to FN be declared invalid and unlawful.

He said the home affairs  department was to issue a marriage certificate to NM, and that the pension fund recognise her customary marriage in the handling of LM’s funds. 

FN was ordered to pay the costs of the court action.