Answer to a question from a reader

Can I remarry after separating from the woman for whom I paid lobola?

The short answer

You can only remarry if you get divorced, or if she and the court agree to you taking a second wife.

The whole question

Dear Athalie

I have a letter stating that I paid lobola for my first wife, but we have separated. Can I remarry? And if so, will my first wife inherit anything after I have passed away?

The long answer

According to the Recognition of Customary Marriages Act of 1998, to be considered a valid customary marriage, the couple must have agreed to marry, both should be 18 years or older, and 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 lobola negotiations between the two families are a necessary part of the process of a valid customary marriage. The fact that you have a letter stating that lobola has been paid would establish that you did indeed have a valid customary marriage.

In terms of the Act, 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. 

If you want to remarry under civil law, it is not enough to be separated: you would need to be divorced. A customary marriage can only be dissolved by divorce on the grounds of irretrievable breakdown of the relationship, and you would need to have a divorce order granted by a court. 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.

If you want to marry a second wife under customary law without divorcing the first, you would need the court’s and your first wife’ permission to do so. You would need to draw up a document stating exactly how the property and assets would be divided between the wives, and the court would have to be satisfied that neither of the wives would be disadvantaged. 

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.

Wishing you the best,

Answered on May 10, 2022, 9:51 a.m.

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