The short answer
You'll need to register your customary marriage
The whole question
My wife and I married in community of property in 2019. We agreed to be in a polygamous marriage, and that I could take a second wife. I already paid lobola for my second wife. What processes do we need to follow in order for her to change her surname to mine once we’re married?
The long answer
All polygamous marriages must be in agreement with the Recognition of Customary Marriages Act of 1998 (RCMA). What that means practically is that you as the husband in an already existing customary marriage must draft a new marriage contract which must be approved by a court before you can marry another wife.
Customary marriage expert, Nthabiseng Monareng, explains that this is because customary marriages are automatically in community of property, and before a husband marries a second wife, the first wife must be given half her share of the marriage assets. This is to make sure that the first wife’s rights are protected and she is not cheated out of what is legally hers.
The court considers the rights of all the parties and may add conditions to make the second marriage valid under the RCMA.
John Manyike, the head of financial education at Old Mutual adds, “It's important to celebrate the customary marriage after lobola negotiations have been concluded. By merely paying or receiving lobola in full without the requisite celebration, the marriage is not concluded in accordance with customary law and is therefore considered invalid. That's why it's important to know the relationship between lobola and a legal marriage.”
According to customary law expert Zama Mopai, “For a customary marriage to be valid, you must first enter into the marriage according to custom, and once that is done then you can proceed to register it.”
A customary marriage should be registered within three months at the Department of Home Affairs. The registering officer at Home Affairs then issues a registration certificate. This is proof that the marriage exists and may avoid disputes in future, although if you don’t register the marriage, the marriage is still valid under the RCMA. However the Deeds Office insists on registration certificates to prove the validity of a customary marriage, so it’s advisable to register the marriage.
Registering the marriage also answers your question about how your second wife can take your surname: Home Affairs has stated that a woman has three options regarding which surname she takes when she gets married:
As women married under the RCMA have the same status as women married under the Marriage Act or the Civil Union Act (which do not allow for polygamy), your second wife has the right to take your surname if she chooses and to have that surname recorded on the registration certificate.
Answered on June 1, 2020, 9 a.m.
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