The short answer
You need to legally divorce your first wife. You can then "re-marry" your current wife.
The whole question
I was in a customary marriage and got divorced without a court order. The elders from both families met with me and my wife, and we were officially separated. We signed a document confirming this.
I remarried in 2010 under civil law, but then I came across your article that suggests my current marriage is invalid.
What happens if I unknowingly got married before being legally divorced? Where does that leave my current wife and our children? Is there a way to correct this without separating from my current wife?
The long answer
Unfortunately, as you are not divorced by court order from your first wife, in terms of the Recognition of Customary Marriages Act 120 of 1998 (RCMA), you are still legally married to her, and your subsequent civil marriage is regarded as null and void in terms of section 3(2) of the RCMA. This was confirmed by the Supreme Court of Appeal in the case of Monyepao v Ledwaba and Others in 2020.
The fact that you were not aware that you were not free to marry your second wife under civil law does not make any difference, legally. In South Africa, many people who married under customary law are unaware that separation or desertion does not constitute a divorce. A customary marriage can only be ended by a court order of divorce on the grounds of irretrievable breakdown of the marriage under Section 8(1) of the RCMA.
Home Affairs requires customary marriages to be registered within three months of the marriage taking place, but if the marriage is not registered, it does not mean that it is not a valid marriage. It simply means that it is harder to prove. And in order for a court to grant a divorce order, a marriage certificate must first be obtained from Home Affairs. This means that whatever proof of the marriage exists – lobola letters, photographs, the fact of the elders all signing and acknowledging the separation – must be submitted to Home Affairs to obtain a marriage certificate, without which you will not be able to apply for a divorce order. If Home Affairs does not agree to issue the marriage certificate on the evidence, you would have to apply to the court to establish the truth of the marriage and for the court to order Home Affairs to issue a marriage certificate.
The fact that you are still legally married to your first wife means that she has the right to half the joint estate when you divorce because, since 30 November 2019, all customary marriages entered into before or after the commencement of the Act are in community of property, subject to the accrual system. This has come about because traditionally women in customary marriages were not entitled to own property in their own right, which was discrimination on the grounds of gender and thus unconstitutional. Now, if you wish your customary marriage to not be in community of property, you have to take out an ante-nuptial contract before getting married.
Under community of property, when the marriage is dissolved by divorce, each spouse is entitled to 50% of the joint estate, which includes all assets and debts.
All this obviously has consequences for your current wife and children. Without a divorce order from a court, any second marriage under civil law would not be valid, and the second wife would not be able to inherit.
Once you are divorced, you would be free to marry her again and, in the meantime, nothing prevents you from continuing to live with her and your children.
Ntandoyenkosi Mkize in an article for ProBono.org in October 2021 says that there needs to be more education for rural women about the requirement to register their customary marriages, as the law says that either spouse can register the marriage. She also recommends that there should be a strict standard operating procedure and clear frameworks about the outcomes of investigations to guide the clerks employed by Home Affairs.
Perhaps the best way to start sorting it all out is to consult a lawyer. If you cannot afford a lawyer, Legal Aid, a means-tested organisation, must assist you. These are their contact details:
Legal Aid Advice Line (Toll-free): 0800 110 110
Please-Call-Me number: 079 835 7179
Wishing you the best,
Answered on Feb. 9, 2023, 9:37 a.m.
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