Legal Pluralism in South Africa: The Implications of Co-Existing Customary and Civil Marriages

Abstract

In South Africa marriage was a key site of colonial legal pluralism. Family formation and marriage were central to upholding boundaries between colonial and local normative orders. Under the umbrella of a single set of fundamental constitutional rights, post-apartheid law nevertheless retains separate statutes, precedents and legal rules for different cultural and religious marriages. This can lead to legal gaps and uncertainty when people enter into simultaneous or coexisting marriages, especially when the same couple concludes a customary marriage together with a civil marriage. This article examines the current configuration and implications of legal pluralism in South Africa by analsysing the interaction between coexisting customary and civil marriages between the same spouses. It identifies three themes in the relationship between these marriages: a hierarchy which continues to privilege civil law over other legal and normative systems; second, failure on the part of the legislature to clarify confusing aspects of the interaction between these forms of marriage and, finally, gaps which neither applicable legal system addresses satisfactorily. It also illustrates the political failure of the legislature, almost thirty years after the advent of democracy, decisively to address the socio-economic problems created by pluralism and the inadequate regulation of customary marriages.

Keywords:

• Co-existing marriages
• customary marriage
• civil marriage
• matrimonial property
• divorce
• colonialism
• legal pluralism

South African family law comprises several overlapping and contesting systems of rules governing family formation and marriage (Rautenbach and Du Plessis 2012). Some of these norms derive from beliefs and religions, others from cultural practices and some from the state. This is described as legal or normative pluralism, defined as “‘more than one legal order or mechanism within one socio-political space, based on different sources of ultimate validity and maintained by forms of organization other than the state” (Benda-Beckmann 2002, 37).

Although pluralism was historically found in both colonised and colonising states (Benda-Beckmann 2002; Tamanaha 2008; Twining 2020), it displays certain distinctive characteristics in formerly colonised territories, to which I will return in more detail in the last section of the article.

One result of pluralism in family law is the phenomenon of co-existing marriages according to divergent non-legal normative and legal systems. Co-existing marriages are also common in other African and former colonial jurisdictions (Imam-Tamim et al. 2016; Worugji et al. 2019). Often these involve one husband who marries different wives (see Rautenbach and Du Plessis 2012). However, this article focuses on co-existing marriages between the same spouses, who marry one another in terms of multiple normative and legal systems.

Such marriages provide a lens to interrogate the ever-shifting relationships and interactions between the different bodies of normative and legal rules in a pluralist family law system (Turner 2015, 382) and, in the case of co-existing customary and civil marriages, the hierarchies, gaps and contradictions which they illustrate.

I distinguish between two categories of co-existing marriages between the same spouses. I refer to the first as simultaneous marriages because they involve the simultaneous conclusion of civil and religious marriages between the spouses. The Marriage Act¹ permits the appointment, as marriage officers, of religious leaders to conduct marriages “according to Christian, Jewish or Mohammedan rites or the rites of any Indian religion.”² These religious marriage ceremonies give rise to fully valid civil marriages, provided that the religious officials conducting the marriages have been duly appointed as marriage officers and provided there is compliance with the other statutory requirements pertaining to witnesses, marriage formula and so forth. In these cases, there is no doubt that the consequences of the simultaneous religious and civil marriages are determined by legal, rather than religious rules. For instance, a Catholic couple could approach the courts to obtain a legally recognised divorce, even though rules of their religion forbid it.

I refer to the second category of marriages between the same spouses as co-existing or parallel, rather than simultaneous marriages, because there is usually a time lag between the conclusion of the different marriages. If religious officials are not appointed as marriage officers, or if the religious ceremony doesn’t meet the statutory requirements for civil marriage, the religious marriage will not be legally recognised.³ This is often the case in Muslim and Hindu marriages where religious officials do not apply to be appointed as marriage officers as a consequence of their historical resistance to apartheid marriage laws and a community preference for applying religious rather than civil legal norms to their marriages (Amien 2010, 368). In these situations, people sometimes conclude an additional civil marriage either before or after the religious ceremony. There is therefore a religious marriage with no or limited legal effect,⁴ together with a civil marriage between the spouses. In this case the legal consequences of the marriage is determined by the civil law of marriage, as for the simultaneous marriages.

A distinctive version of co-existing marriage occurs when the parties have already concluded a customary marriage and subsequently marry one another terms of civil law. This is different from the other co-existing marriages because, since the adoption of the Recognition of Customary Marriages Act⁵ (abbreviated as the RCMA) in 2000, customary marriages have full legal validity, together with a set of personal and proprietary consequences as determined by the Act. There are therefore potentially two legally recognised marriages and thus two conflicting sets of legal rules which could apply to these marriages – the rules relating to valid customary marriages and the rules relating to civil marriages. These are the marriages which form the subject matter of this article.

This article examines the current configuration and implications of legal pluralism in South Africa with reference to the interaction between co-existing, valid customary and civil marriages between the same spouses. By analysing and comparing the substantive legal rules, I identify three themes in the relationship between these marriages: a hierarchy which continues to privilege civil law over other legal and normative systems; second, failure on the part of the legislature to clarify confusing aspects of the interaction between these forms of marriage and, finally, the existence of gaps which neither applicable legal system addresses satisfactorily. The main substantive headings of the article investigate these three themes of hierarchy, lack of clarity and gaps in legal regulation.

I will consider, first, the current, hierarchical legal framework around the validity of co-existing customary and civil marriages, as set out in the RCMA. I argue that the continuation of the pre-constitutional position, namely that the civil marriage expunges and replaces the customary marriage, is constitutionally untenable and conflicts with the primary aim of the RCMA, namely to give full legal recognition and effect to indigenous customary marriages. The current position is based on siloed understanding of marriage as either customary or civil, and the dichotomous premise that either one or the other form of marriage must prevail over the other and it does not reflect how spouses in these marriages understand their relationships.

The next section investigates two issues: the appropriate dissolution of such co-existing marriages by divorce, and the applicable matrimonial property regimes which apply to co-existing customary and civil marriages. I show that courts solve these problems by relying on replacement of the customary marriage by the civil marriage, a position which appears to be unconstitutional. However, I argue that there are other ways to resolve these problems which do not require the legal replacement of the customary marriage by a civil marriage. One potential solution is to regard the two marriages as a single hybrid legal entity – a monogamous marriage which contains both customary and civil elements. This would not be constitutionally objectionable and would, moreover, accord with the beliefs held by spouses in co-existing marriages, that they are in a single marriage which is neither exclusively customary nor civil, but which contains elements of both.

The following section of the paper shows how the fragmented and partial harmonisation of plural legal regimes creates gaps in the law, using the example of the return of lobolo in co-existing marriages. The argument is that replacing the customary marriage with a civil marriage deprives spouses in co-existing marriages of the few (albeit unsatisfactory) mechanisms to address the return of lobolo which are contained in the RCMA. In this way, I show that replacing the customary marriage with a civil marriage has real and detrimental consequences for the individual spouses’ access to courts and their property entitlements.

In my discussion of these substantive issues – hierarchy, lack of certainty and gaps – I suggest that one solution may be the legal recognition and facilitation of the understanding of spouses in co-existing marriages that they are partners in a single marriage, which simply has elements of both civil and customary law – a single hybrid form of marriage. Whether this is possible depends on the contours of a future South African family law system, a question which has recently been addressed by reform initiatives in the Law Reform Commission and by the Department of Home Affairs.⁶ Pertinent to this discussion is the question of whether there should be a single set of requirements for all South African marriages and marriage-like intimate relationships, or whether the current scheme of separate forms of marriage for different cultural and religious groups should be maintained – albeit in a single “omnibus” statute. The final section of the article considers this and other issues relating to hybridity and legal pluralism in more detail.

The main aim of the article is, however, not to present a comprehensive solution to the problems of pluralism. Instead, I point out the problems caused by the political failure of the legislature, almost thirty years after the advent of democracy, decisively to address the socio-economic problems created by pluralism and the inadequate regulation of customary marriages. I do not suggest detailed practical solutions, but I invite consideration of the possibility of a hybrid form of monogamous marriage which contains elements of both customary and civil law as possibly resolving some of the problems which arise in these marriages.

First, however, the next section will provide context on the history of simultaneous customary and civil marriages and people’s motivations for entering into them.

Spouses’ motivations for entering into co-existing marriages

Erlank (2014) shows how since the early nineteenth century African people started to enter into civil marriages, either together with customary marriages or at least combining some customary elements with civil marriage. This, she argues, has been the pattern for a majority of marriages between African people ever since the 1930s. Nevertheless, in much of the academic work on marriages between African people in South and Southern Africa the focus has remained staunchly on customary marriages and there is insufficient research addressing the combination of marital forms and practices. This means that customary marriages are invariably viewed as manifestations of traditional cultural practices, instead of being seen as the behaviour of modern people displaying agency and transforming their cultures in contemporary globalised contexts (Erlank 2014).

On the other hand, academic work on civil marriages seldom addresses the problems caused by simultaneous customary and civil marriages. In this way academic discourse replicates the notion that civil and customary marriages exist in silos, which fails to recognise and engage with the reality of many South African marriages and with people’s views and motivations for concluding co-existing marriages.

The reasons why spouses who are married in customary law opt to also enter into civil marriage with one another have changed over the years, reflecting the prevailing legal and social contexts. First, it is important that civil marriages have been historically associated with Christianity and concluded in church. These marriages are often called “white weddings” – referring to the white bridal dresses worn in church marriages (Erlank 2014; Himonga and Moore 2015, 23). Christian missionaries encouraged African Christians to enter into church marriages because they disapproved of the practices of lobolo⁷ and polygyny associated with customary marriages. In contemporary times, a civil marriage may therefore continue to signal the spouses’ Christian religious affiliation and their wishes for a sacred blessing of their marriage (Himonga and Moore 2015, 100).

However, in the past, African couples would also have had more practical reasons for entering into concurrent customary and civil marriages. At first customary law and customary marriages were not recognised by the colonial powers. However, in tandem with the political co-opting of traditional authorities, certain rules of customary law were subsequently recognised, albeit in limited and distorted ways (Benda-Beckmann 2001, 50; Bennett 1979, 405; 2001, 1029–1033). As a result, it sometimes became necessary to determine whether customary or civil law should be applied to particular disputes between African litigants – applying the rules of so-called internal conflicts of law (Bennett 1980). The nature of a person’s marriage was one of the factors which would be considered in designating the applicable legal system, thus potentially affecting the legal rights and entitlements of African people (Bennett 1979, 400). There may therefore have been tactical and economic advantages to entering into civil marriage for those who preferred to appeal to civil, rather than customary law rules in legal disputes.

Another motivation, especially for wives, would have been the potential for a more beneficial matrimonial property regime associated with the civil marriage. This would not necessarily have availed women who married before 1988, because the default matrimonial property system for African civil marriages before that time was out of community of property and subject to the husband’s marital power⁸ – an extremely detrimental situation for women. However, community of property could have been introduced by way of an antenuptial contract or a declaration before a magistrate. After 1988, however, civil marriages by African people were in community of property⁹ and the possibility of sharing in marital property brought about by this system may have motivated some customary wives to enter into civil marriages with their customary husbands.

In contemporary customary marriages, there are perceptions that that civil marriages confer legal certainty about the existence of the marriage and its property consequences. This could protect wives against relatives who may, upon the death of the husband, take advantage of the ambiguous requirements for customary marriages to deny the existence of a customary marriage and to seize property which legally belongs to the wife (because the wife’s position as intestate heir in customary law would be disputed, see Himonga and Moore 2015, 119). Women who do not want their husbands to enter into subsequent customary marriages – which could infringe their property rights and those of their children – may also insist on civil marriages, because they know that subsequent customary marriages to other women will be invalid.¹⁰

In addition to the attempts to better protect their financial interests, research indicates that many customary spouses do not know or understand the legal differences between these forms of marriage. As a result, some people enter into co-existing civil marriages “to celebrate the complete transfer of lobolo” (Himonga and Moore 2015, 23). Some of Himonga and Moore’s respondents appeared to believe that registration of the customary marriage by the Department of Home Affairs constitutes a civil marriage (Himonga and Moore 2015, 113, 128).

In summary therefore, there are different motivations for entering into coterminous civil and customary marriages, with many people not being sure about the legal implications of the different marital forms. In fact, there is empirical evidence that people do not consider these marriages as being separate from one another, but simply regard their marriages as incorporating both civil and customary elements (Budlender 2013, 31; Himonga and Moore 2015, 23; Osman 2019, 16, 17) – what could be seen as a single hybrid form of marriage which has both civil and customary elements (see Bonthuys 2020 and the concluding section of this article below). Given the intricacies and ambiguities in the law about the legal consequences of such marriages, described below, this is not surprising.

Hierarchy: the legal status of co-existing customary and civil marriages

Simultaneous customary and civil marriages are expressly permitted by the RCMA, but only for people who are already married to one another in monogamous customary marriages (sections 3(2), 10(1)). In other words, a man who has more than customary wife may not marry one of them in civil law and anyone who is a spouse in an existing customary marriage may not marry a person other than their customary spouse in civil law. Also significant is section 10(4) of the RCMA to the effect that:

Despite subsection (1), no spouse of a marriage entered into under the Marriage Act, 1961, is, during the subsistence of such marriage, competent to enter into any other marriage.

This obviously prevents spouses in existing civil marriages from marrying anyone else according to customary law while the civil marriage subsists. But in addition to the prohibition of customary marriages to other people, a civil marriage may not be followed by a monogamous customary marriage between the same spouses. The aim of this prohibition is said to be to safeguard the monogamous nature of civil marriage (Kambule v The Master 2007 3 SA 403 (E)) by preventing subsequent bigamous civil or customary marriages. However, it also implies that people who are already married to one another in a civil marriage may not subsequently marry one another in customary law. In other words, it appears effectively to prohibit co-existing civil and customary marriages where the civil marriage precedes the customary marriage, but to allow co-existence when the customary marriage was concluded first (Bonthuys and Pieterse 2000, 623).

This implicit prohibition of co-existing marriages where the civil marriage occurred first was suggested by the Law Commission Report on Customary Marriages (1998, par 3.3.6, author’s emphasis) on the basis of the following reasoning:

Conversion from a customary marriage to a civil marriage, but not vice versa, should be allowed. This right should be based not on the alleged superiority of any one marriage form, but rather on the practical consideration that movement from a more open- ended and facilitative arrangement to a stricter and more highly-regulated regime makes better sense than the reverse would do. It can be reasonably assumed that the parties consciously intended, for reasons of their own, to submit themselves to the stricter rules.

The first, italicised section of this quote shows the crux of the reasoning to be a perception that there can be either a civil or a customary marriage between the spouses – but not both - and that the pertinent question therefore is which marriage takes precedence over the other (South African Law Commission 1998 par 3.2.9 explicitly makes this argument). The Report (par 3.2.6.) acknowledges that, under Apartheid the same argument

was prompted in part by the superior position enjoyed by Christian marriage and in part by the understanding that [the subsequent civil marriage] operated as an indication of the spouses’ orientation towards western culture.

Indeed, the idea that the legal consequences of the existing customary marriage is replaced by the subsequent civil marriage is contained in the Black Administration Act¹¹ - generally considered a key statute of the Apartheid legal architecture (Malepe and Odeku 2023, 320) - and in pre-RCMA case law (Nkambule v Linda 1951 1 SA 377 (A)).

But what is the legal status of co-existing customary and civil marriages after the enactment of the RCMA? Osman (2019, 9–14) provides a number of persuasive arguments based on historical context, academic opinion and statutory interpretation for the proposition that a subsequent civil marriage continues to replace or “supercede” an existing customary marriage between the spouses. In particular, she agrees with academic opinion that this solution would have the benefit of promoting legal certainty.

Nevertheless, she acknowledges (2019, 11) that this solution would entail the replication of the historical preference for civil over customary marriages, which the RCMA aimed to eliminate. She adds that maintaining the preference for civil marriages would probably offend the recognition of customary law in the Constitution.

This reasoning provides a strong justification for the alternative position, namely that the replacement of a customary marriage by a subsequent civil marriage represents constitutionally impermissible unfair discrimination on the intersectional bases of race and culture which cannot be justified by considerations of convenience or legal certainty. The constitutional injunction that any statutory interpretation must accord with the “spirit, purport and objects of the Bill of Rights”¹² strengthens this argument.

Another noteworthy consideration is that the drafters of the RCMA had the opportunity and the means to indicate clearly that a subsequent civil marriage would replace the existing customary marriage, but preferred not to do this. Given that the first substantive provision of the RCMA is to give full legal recognition to customary marriages,¹³ and in the absence of a clear statutory provision, it cannot lightly be assumed that a subsequent civil marriage would eradicate an existing customary marriage. That would directly contradict the very first purpose of the RCMA, “[t]o make provision for the recognition of customary marriages” in the case of numerous co-existing marriages. Finally, research shows that many people who enter into co-existing marriages do not view themselves as having separate civil and customary marriages. Instead, they believe that they celebrated the traditional and religious aspects of their marriage in different, but appropriate ways (Budlender 2013, Himonga and Moore 2015, Osman 2019). Spouses in such co-existing marriages would be alarmed to know that their customary marriages have been rendered void by their conclusion of a subsequent civil marriage and may experience this as a perpetuation of the apartheid devaluation of African marriages.

Of course, the issue needs to be thoroughly examined in and its constitutionality clarified by the Constitutional Court, since the post-constitutional authority for the replacement theory is mostly lacking or inadequate. In the Mandela and Mphosi matters, discussed below, the courts accepted the pre-constitutional position without evaluating the rule in any depth. The prevailing view is therefore that an existing customary marriage is expunged by the subsequent civil marriage between the two spouses.

This perpetuates the colonial and Apartheid legal hierarchy favouring civil marriages at the expense of customary marriages. It also creates various legal uncertainties, as the discussion of divorce and matrimonial property regimes in next section shows.

Lack of certainty

One of the considerations which may have influenced the drafters of the RCMA not to explicitly state which of the co-existing marriages takes precedence may have been the belief that there would be no legal conflicts between monogamous civil and customary marriages, because monogamous customary marriages are, according to the RCMA (s 7(2)) in community of property, unless there is an antenuptial contract, as is also the case for civil marriages. The illusion of legal similarity is also fostered by the application of the Divorce Act to customary marriages (RCMA s 8(1)).

Nevertheless, this article argues that this apparent congruence between the property consequences of monogamous customary and civil marriages and the impression which it creates of harmonious resolution of potential conflicts between the two legal systems in co-existing marriages do not withstand closer scrutiny. In respect of two specific issues there are residual uncertainties which are only concealed or evaded by the possibly unconstitutional rule that the customary marriage is expunged by the subsequent civil marriage.

In the following sections I will first discuss the question whether one divorce dissolves both marital relationships. Currently, this dilemma is resolved by holding (possibly unconstitutionally) that the customary marriage is dissolved by the subsequent civil marriage. However, I argue it is not necessary to adopt this untenable argument. It is possible to resolve the issue in two other ways, even if both marriages continue to subsist. As a third alternative, if one accepts that the conclusion of co-existing civil and customary marriages result in a single hybrid form of marriage, then a single divorce would suffice.

In the next section I discuss the potential for conflicting matrimonial property regimes between the first and second marriages. Currently the courts solve this problem by applying the rule that the customary marriage is nullified by the subsequent civil marriage. My contention is that, as in the case of divorce, there are also other avenues to resolve these clashes without holding that the customary marriage is void.

Multiple divorce proceedings

Traditionally a customary marriage could be ended informally by agreement between the spouses and their families, but all or part of the lobolo had to be returned, depending on the circumstances in which the marriage ended (Himonga 2014, 255, 256). The RCMA departs drastically from this arrangement, by explicitly stating in section 8(1) that “[a] customary marriage may only be dissolved by a court by a decree of divorce on the ground of the irretrievable breakdown of the marriage.” The processes, grounds for divorce and remedies applicable in civil divorces as set out in the Divorce Act¹⁴ are all transposed upon the dissolution of a customary marriage with some changes.¹⁵ Together with these harmonising provisions, the assumption that the civil marriage simply replaces the customary marriage, creates the impression that there will be no complications or uncertainties when co-existing civil and customary marriages are dissolved.

However, this is not necessarily so. First, there is no clear statutory indication whether dissolution of the civil marriage automatically also dissolves the customary marriage. This was canvassed in Mandela v Executors Late Mandela,¹⁶ which turned upon the question of whether the parties were still married in customary law when the husband died in 2013. The parties had concluded a customary marriage in 1958 and subsequently also married each other in terms of civil law. They divorced in 1996 in terms of the Divorce Act – that is, before the enactment of the RCMA which determines that a customary marriage ends by following the processes in the Divorce Act. Professors Koyana and Mqeke, both called as expert witnesses on customary law, disagreed on the question whether, in the absence of agreement on the return of the lobolo, the customary marriage had been ended by the decree of divorce dissolving the civil marriage.

The court held that the customary marriage had indeed been dissolved, citing two reasons: first, that, after 1996, the behaviour of both spouses indicated that they no longer regarded themselves as married and, second, that a customary marriage concluded before 1988 was extinguished by a subsequent civil marriage between the same spouses. It added that “[i]n any event, parties married in terms of customary law might enter into a civil marriage with the intent to relinquish the customary marriage and the consequences thereof” (par 31).

Although it is indisputable that pre-1988 customary marriages were legally replaced by subsequent civil marriages between the same spouses (Himonga 2014, 257), in the previous section I have argued that this is should not necessarily be the case after the adoption of the RCMA (two years after the parties’ divorce), which gives full legal validity to both existing and post-RCMA customary marriages (see s 2(1), 2(2)).¹⁷

Even if one accepts the possibility that both co-existing forms of marriage continue to exist as a form of hybrid marriage, it is possible to address the problem of civil and customary divorces in different ways.

On the one hand, it could be argued that it would probably not have been the intention of the legislature that spouses should waste resources by instituting two divorce actions, involving similar facts and using the same procedure, to dissolve both marriages. The fact that customary marriages are now dissolved using the processes to dissolve civil marriages (RCMA section 8) could be taken as an indication that one divorce action – either of the customary or the civil marriage - could end both marriages. The best solution would be an amendment to the RCMA to clarify this question. Pending such an amendment, it would be practically prudent to ask for a divorce order which dissolves both marriages if that is what the parties intend.

On the other hand, there may be circumstances in which a couple wish to dissolve their civil marriage, but keep the customary marriage alive. For instance, spouses may after some time agree that the husband will take a second customary wife, because the wife is unable to bear children (Maithufi and Moloi 2005 151). They cannot do so while the civil marriage subsists, because of the monogamous nature of civil marriage. If the husband enters into a second customary marriage while the civil marriage subsists, the second customary marriage would clearly be void (RCMA s 10(4); Monyepao v Ledwaba 2020 JDR 0875 (SCA)). Dissolving the civil marriage between them would allow the first customary marriage to continue, and the husband to take a second customary wife. The existing interpretation – that the customary marriage is erased by the subsequent civil marriage - would require the spouses to divorce and then enter into another customary marriage to one another, followed by a second customary marriage by the husband to another wife. This would be patently absurd.

I am not aware of reported decisions on such facts, but the possibility of such situations does illustrate, I argue, the lack of certainty around divorce in co-existing customary and civil marriages, which persists despite the harmonisation of the grounds and processes for divorce between these two forms of marriage.

I have suggested the possibility that co-existing customary and civil marriages could result in a single marriage, which has both customary and civil law elements. This would provide a third avenue for resolving the divorce dilemma, because a single divorce would then dissolve both marriages without resorting to the argument that the customary marriage is expunged by the subsequent civil marriage.

The possibility of conflicting matrimonial property regimes

Monogamous customary marriages concluded before and after the operation of the RCMA are now by default in community of property (RCMA s 7(2)). It is possible that a couple may decide to conclude an antenuptial contract in respect of their subsequent civil marriage, even though none had been entered into in respect of the earlier customary marriage. This strategy would appeal to a wealthier spouse who finds that a marriage in community of property does not serve his interests. Rather than changing the matrimonial property system of the marriage by way of court order,¹⁸ the wealthier spouse may persuade the other spouse to enter into a civil marriage subject to an antenuptial contract. This happened in the matter of Mphosi v Mphosi (unreported judgment of the Limpopo High Court, Polokwane case number1142/2014.)

This scenario of conflicting matrimonial property regimes applying to the same property is addressed by section 10(2) of the RCMA which determines that a civil marriage between spouses who are already married in customary law is in community of property unless there is an antenuptial contract to this effect. Important to note is that section 10(2) does not spell out that the customary marriage is dissolved by the subsequent civil marriage.

In the Mposi case, the court held that the pre-existing customary marriage – with its associated matrimonial property regime – was extinguished by the subsequent civil marriage and the property regime which the parties chose to apply to the subsequent marriage (par 20, 21). It added (par 20) that “[i]t is moreover totally repugnant to the idea of a civil marriage that a customary marriage can co-exist with a civil marriage.” I have set out the reasons why I question this view and the hierarchy of marriages which it implies. Furthermore, is not necessary to resolve this problem by holding that the customary marriage is extinguished by the subsequent civil marriage.

An alternative argument in favour of applying the property regime of the civil marriage which does not rely on invalidating the customary marriage, is that, by concluding an antenuptial contract in respect of the civil marriage, the couple indicates their shared intention not to be married in community of property. This intention is expressed after the conclusion of the customary marriage – thus more recently in time – and should therefore be given effect to as a reflection of the spouses’ considered consensus on the applicable matrimonial property system.

Osman (2019, 17, see also Maithufi 2015, 268) provides another justification – also based on an interpretation of what the intentions of the spouses would have been – supporting the same conclusion. They contend that customary marriages have traditionally not required the conclusion of antenuptial contracts. Customary spouses would therefore be unaware of the need to conclude such contracts. Instead, many people associate the civil marriage with the safeguarding of property rights, and for this reason they may only express their real intentions relating to their property by concluding an antenuptial contract before the civil marriage.

On the other hand, the proprietary regime of the customary marriage could be preferred on the basis that the parties had indicated their preferred property regime earlier in time and that these earlier rights must be preferred over rights which were established later, according to the common law maxim prior in tempore est potior in iure (rights which vested earlier take precedence over rights that vest subsequently).

Another consideration in favour of preferring the customary marriage’s property regime is that in all other marriages a change of property regime requires a joint application to a court in terms of section 21 of the Matrimonial Property Act. If both marriages constitute a single hybrid marriage, as I argue, then the matrimonial property regime of the customary marriage can only be changed by way of a joint application to court and section 21 of the Matrimonial Property Act cannot be circumvented by entering into what is effectively a post-nuptial contract.

On the other hand, section 10(3) of the RCMA which deals with the matrimonial property regime of the second, civil marriage, specifically renders other sections of the Matrimonial Property Act applicable to these marriages.¹⁹ Section 21, which requires a joint court application to change the matrimonial property regime during the subsistence of the marriage, is specifically not included. This could suggest that merely concluding an antenuptial contract in respect of the subsequent civil marriage is sufficient to change the property regime.

There is therefore no clear solution to the problem. The Supreme Court of Appeal has not expressed a view on the issue. The rule that the customary marriage is replaced by the civil marriage, used in Mposi presents one solution to the problem, but, I have argued, may not be constitutionally compliant. In any event, the wording of the RCMA continues to create legal uncertainty in this respect and should be amended.

Having discussed two issues on which there is a lack of clarity in co-existing marriages, I return to one on which the RCM contains some provision, but the Divorce Act is silent – the return of lobolo at the end of a customary marriage.

Gaps in legal regulation: the return of lobolo at divorce

Return of lobolo under the recognition of customary Marriage Act

The payment of or agreement on lobolo is not specifically mentioned as a prerequisite for a valid customary marriage in the RCMA, but it is doubtlessly an integral part of any customary marriage (Himonga 2014, 255). It is generally believed that it is included in the RCMA’s requirement in s 3(1)(b) that a customary marriage “must be negotiated and entered into or celebrated in accordance with customary law” (Maithufi 2015, 266; Manthwa and Ntsoane 2022 510).

According to customary law, depending on the circumstances, some or all of the lobolo must be returned at the dissolution of a marriage (Himonga and Moore 2015, 162).²⁰ However, the return of lobolo at divorce is not specifically mentioned in the RCMA. This appears to have been a deliberate omission. The Law Commission’s advisory panel on the harmonisation of common and customary law recommended that the return of lobolo not be made a condition for granting a customary divorce, because lobolo would have been received by the relatives of the bride, who are not parties to the divorce, while the wife who is party to the divorce does not receive the lobolo in her personal capacity. A second reason is that payment of lobolo is not, in the advisory panel’s view, an absolute requirement for a valid customary marriage (South African Law Commission 1998 paras 4.3.3.13, 4.3.3.16).

Nevertheless, the RCMA contains some provisions which could be used to incorporate or at least consider the repayment of lobolo and related matters in a divorce order under that Act. For instance, s 8(4)(e) allows a court which makes a maintenance order at divorce to take account of “any provision or arrangement made in accordance with customary law,” while s 8(5) determines:

Nothing in this section may be construed as limiting the role, recognised in customary law, of any person, including any traditional leader, in the mediation, in accordance with customary law, of any dispute or matter arising prior to the dissolution of a customary marriage by a court.

The reasons for shying away from explicit regulation of the return of lobolo in the RCMA probably extend beyond the concerns expressed by the Law Reform Commission. Although the basic principles relating to lobolo and its return at divorce are similar across the region, the mechanisms, processes and amounts associated with the payment and return of lobolo have always varied across cultural groups and even within them (Rudwick and Posel 2014, 120). Pre-colonial practices were severely distorted by the effects of colonialism, leading to the current situation of lobolo being paid by individual husbands rather than their families, the use of cash rather than livestock and other factors affecting affordability of lobolo payments (Budlender and Lund 2011; Pauli and Van Dijk 2016; Rudwick and Posel 2014, 119). These factors have led to enormous variation and complexity in the practices around lobolo. Even if different rules could be formulated for different cultural groups, the increased incidence of inter-cultural customary marriages compounds the problems.

Moreover, after having been agreed upon, lobolo is often not paid in full or even at all by the time a marriage ends in divorce, while sometimes a large proportion of the lobolo which has been paid is returned to the bridegroom’s family in the form of various gifts or payments for the wedding (Pauli and Van Dijk 2016, 261; Rudwick and Posel 2014, 121). Because it is paid in money rather than cattle, the lobolo would often have been consumed when the marriage breaks down and the bride’s family unable to return it (Rudwick and Posel 2014, 129). For these reasons, the return of all or some of the lobolo at divorce by customary law may no longer be widely practised nor practicable (South African Law Commission 1998 paras 4.3.1.7, 4.3.1.9, 4.3.1.10).

Nevertheless, failure to deal with the return of lobolo when customary marriages are dissolved may have detrimental consequences for women and children. Women may possibly be deterred from seeking divorce by the knowledge that their families would not be able to return the lobolo (South African Law Commission 1998 para 4.3.2.5). There is conflicting information on whether this happens in practice. While Himonga and Moore’s study (2015, 168) found no such instances, respondents in Higgins’ study reported that the threat of having lobolo re-claimed was indeed a factor which influenced them and their families when they indicated that they wanted to leave their marriages (Higgins et al. 2006, 1673, 1674). Himonga and Moore (2015, 182–3, 188) also report that the payment of lobolo was used as a justification in those cases in which men or their families wanted or threatened to remove children from the custody of their mothers after divorce, even though women believed that children were best cared for by their mothers.

The fact that courts dissolving civil (and customary marriages) do not deal with the issues around the return of lobolo means that this is left to be settled between the families of husbands and wives. The repayment of lobolo therefore represents an instance of incomplete harmonisation of the customary and civil laws relating to marriage – a situation which creates uncertainties that are only resolved by the constitutionally dubious mechanism of dissolving and replacing the prior customary marriage by the civil marriage. It also raises the very real possibility of wives not being consulted in the discussions and that their interests and those of their children would be sacrificed in favour of family interests or those of husbands (Himonga and Moore 2015, 162). Moreover, in the absence of legal rules and enforcement mechanisms, disputes about the return of lobolo are likely to be referred to traditional authorities and customary courts. Women’s rights to be heard in these fora and to represent their own interests aside from those of their families are notoriously limited, while many leaders in customary communities may not be entirely convinced by arguments based on need for gender equality (Higgins et al. 2006, 1700–1703).²¹

The failure of the RCMA to adequately regulate the return of lobolo has been vigorously criticised in the academic literature since its adoption (see Kovacs, Ndashe, and Williams 2013; Mwambene and Kruuse 2013). However, at least the RCMA contains provisions which could plausibly allow a court granting a divorce under this legislation to take account of lobolo arrangements agreed upon by the spouses at divorce. For instance, Himonga (2014, 277) argues that s 8(4)(e):

can be used to refer to any arrangement for maintenance that serves the interests of the child. For example, upon payment of lobolo, the families of the parties could agree that the lobolo or part of it should be invested in or reserved for the future maintenance of the children of the marriage. If a marriage in respect of which such an arrangement was made is dissolved, the court should be able to take this arrangement into account in determining the amount to be paid under a maintenance order.

Return of lobolo under the Divorce Act

The issues outlined in the previous paragraph generally affect all customary marriages and are not unique to simultaneous marriages. Nevertheless, as I have set out above, according to the current consensus, a pre-existing customary marriage would be extinguished by the subsequent civil marriage and the provisions of the RCMA would not apply to the divorce. This leaves the Divorce Act and the Matrimonial Property Act to regulate divorces in co-existing marriages.

Whereas the RCMA contains some provisions which could relate to lobolo, the other two statutes contain nothing. Himonga (2014, 255) has argued that the return of some or all of the lobolo could be considered under sections 7(3) and 9 of the Divorce Act, which regulate orders for forfeiture of benefits and redistribution of assets.

There are some difficulties with this suggestion, however, because the family members who received the lobolo would not be parties to the divorce action and a court would therefore not be able to make forfeiture or redistribution orders against them. Furthermore, the criteria for granting forfeiture and redistribution orders concern contributions made by one spouse to the estate of the other spouse and the conduct of the spouses, rather than contributions by spouses to the estates of third parties (Divorce Act sections 7(3–5), 9). It seems therefore that forfeiture and redistribution orders will probably not be made against the families of wives.

The main point I wish to make is not just that there are problems with the return of lobolo at divorce in the RCMA, but that in co-existing marriages, the well-known gaps in the RCMA are not addressed by replacing the customary marriage by a civil law marriage. In fact, applying civil law removes the few potential solutions for these problems already contained in the RCMA. This leaves spouses in co-existing marriages without redress in any system. Stated in terms of legal pluralism, the inadequate harmonisation of customary and civil law marriage norms has exacerbated the conflicts between the two normative systems by removing the (inadequate) protection provided for in the RCMA without creating better or in fact any protective mechanisms in civil law.

Legal pluralism and the regulation of concurrent customary and civil marriages

The introduction to this article situated the discussion of co-existing marriages within the theory of legal and normative pluralism and promised to expand on the particular forms which pluralism took within colonial societies.

My starting point is the by now generally accepted view of colonialism as a system of domination and exploitation by foreign powers, undergirded by an ideology justifying this domination. This ideology was usually that indigenous people were inferior and needed the “benefits” of progress, civilisation and western religion (for instance Merry 1991, 894–896; Merry 2003, 570; for former African colonies see Gebeye 2017; for South Africa see Fesseha 2013; Bennett 2001). A belief in in the advantages of the rule of law and the importance of individual rights was integral to this ideology (Merry 2003, 917):

Law serves as the handmaiden for processes of domination, helping to create new systems of control and domination. At the same time it constrains these systems and provides arenas for resistance…[I]n the colonial context, Western law contributed in significant ways (both obvious and subtle) to the transformations accompanying colonialism and capitalist expansion.

One of the consequences of the South African version of colonial pluralism is co-existing customary and civil marriages and I have demonstrated that, even in constitutional-era South Africa, the relationship between them continues closely to mirror aspects of the colonial legal order.

This colonial legal order was inherently hierarchical, ascribing higher value to colonial processes, concepts and legal institutions, while limiting the application of indigenous norms (Benda-Beckmann 2002, 60; Fesseha 2013, 177; Merry 1991, 916–917) through mechanisms like the notorious “repugnancy” provisions.²² This aim was actively encouraged by Christian missionaries who wanted to replace customary marriage and practices like lobolo and polygyny with monogamous Christian marriage and its consequences (Himonga 2005, 101). The current rule that the existing customary marriage is replaced by a subsequent civil marriage between the same monogamous spouses, while there is no provision for a civil marriage to be replaced by a monogamous customary marriage between the same spouses demonstrates the continued existence of this hierarchical thinking.

It also demonstrates another facet of colonial pluralism, described by Berman (2007, 1170, emphasis added) as the “hierarchical coexistence of what were imagined to be quite separate legal systems, layered one on top of the other.” In co-existing marriages, various conundrums are caused by the basic idea that the monogamous customary and civil marriages are legally separate entities between which a choice must be made. They could, alternatively, be seen as monogamous marriages between the same spouses incorporating both customary and civil elements, for instance both the payment of lobolo and an intention to be monogamous. However, when they are regarded as different marriages, the implication is that one legal “system” must prevail to finally determine the applicable matrimonial property system or divorce procedure as if the other marriage did not take place.

Such a siloed approach to co-existing marriages does not accord with the spouses’ perceptions, as demonstrated in the empirical literature on people’s motivations to enter such marriages. It continues to distort and deny indigenous practices, perceptions and African people’s identities as simultaneously African and “modern” (Bozzoli and Nkotsoe 1991). Diala (2021, 10) reminds us that colonial interventions effected changes to socio-cultural contexts, including profound shifts in African people’s religion, education, administration, technology and economic production. These shifts continue to affect the lives of African people and the ways in which they understand and practise customary law – often in combination or interchangeably with civil law (Diala 2021, 2, 13, 14). The persistence of this siloed version of pluralism perpetuates another feature of colonial pluralism: the distortion of indigenous norms and replacing “living” customary norms with “official” rules which do not reflect people’s lives or perspectives (Benda-Beckmann 2002, 64; Merry 1991, 914–914, Sanders 1987, Bekker and Maithufi 1992).

However, legal pluralism does not remain static. According to Turner (2015, 393) pluralism is always in a state of flux, with normative orders sometimes de-pluralising and sometimes re-pluralising in tandem with simultaneous processes of ‘juridification and de-juridification’ and ‘re-politicization of law and religion.” The exact contours of these changes depend on the state, which decides which norms are regarded as law and which are not – a politically driven exercise – but one which has a profound impact on the state’s ability to meet its developmental goals (Benda-Beckmann 2001, 46, 49).

I have demonstrated that the continued difficulties around co-existing marriages indicate that the goal of decolonising law is incomplete, at least in the area of family law. Two recent law reform initiatives which will influence this conundrum are the Law Reform Commission’s Discussion Paper on a Single Marriage Statute (2021) and the Department of Home Affairs Draft Marriage Bill of 2023.²³ The Discussion Paper identifies two options for a future legal system – either the retention of the current fragmented system of marriage laws for different cultural and religious marriage forms and unmarried relationships in a single so-called “omnibus” statute, or the formulation of minimalist requirements which apply to all forms of marriage and relationships. It opted for the second alternative (par 1.42–1.47). The wide definition of marriage and the minimalist requirements for marriages and protected relationships suggested by the Discussion Paper would not distinguish between customary and civil marriages, thus rendering the issue of co-existing marriages legally irrelevant (par 2.16–2.17). The Law Commission’s recommendations appear to capable of at least facilitating the development of hybrid forms of marriage. The Department of Home Affairs, however, appeared to express a preference for an omnibus model (White Paper 34), thus retaining different sets of rules for different marital forms, but it is not clear if or how this is incorporated in the Draft Bill. The Draft Bill (clauses 8(1)-(3)) appears to prohibit co-existing customary and civil marriages.

My own preference would be for legal recognition of the social reality that co-existing marriages are hybrids and for a considered process of merging legal orders in which some elements of traditional custom could be reflected in civil law, or for a single statute which would recognise both civil and customary marriage on the same footing, as suggested in the Law Reform Commission’s Discussion Paper. Many scholars have called for a more conscious preservation of socially valuable customary values and the creation of some form of a hybrid marriage system (see Bonthuys 2020). For instance, Himonga (2005, 100, 103, 106) cautions that communities will simply ignore official statutory customary family law if it diverges too far from existing customary practices, while Nhlapo (2017, 2) has argued that:

the best way forward is for both the courts and the lawmakers to adopt an approach to customary law which respects its deep underlying values and attempts to promote and support these African values even in the face of individual practices that are perceived to be constitutionally problematic.

A hybrid system coupled with an extensive judicial discretion could be both feasible and capable of advancing constitutional values. It could retain valuable elements of customary law and reflect the lived experiences of spouses in co-existing marriages without declaring one of the marriages invalid.

Conclusion

This paper examined the problems which arise when the same spouses are married to one another in both customary and civil law – a common practice in South Africa. After the Constitutional Court’s judgment recognising Muslim marriages, similar problems can be expected to arise in those marriages.

My argument is that the current legal rule – that the customary marriage is simply replaced by the civil law marriage is not only constitutionally untenable, but subverts the very reason for the adoption of the RCMA. In any event, this “solution” fails to address hidden problems, like the questions around divorce and the applicable matrimonial property system if parties were to apply different systems in respect of the two marriages. In relation to lobolo, the current rule removes those (inadequate) remedies provided in the RCMA, without providing any replacements.

I argue that the state has a duty to address these legal issues expeditiously, given that they are also now likely to arise in respect of Muslim marriages and because they affect the lives of many couples in co-existing marriages. The Law Reform Commission’s Discussion Paper on a Single Marriage Statute and the Draft Marriage Bill present an opportunity to consider these issues more systematically, but the solutions which they present are unfortunately contradictory and incomplete.

Acknowledgments

My thanks to Marius Pieterse and the anonymous reviewers of this article for helpful comments.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Act 25 of 1961 s 3 (hereafter the Marriage Act). The Civil Union Act 17 of 2006 s 5 allows officers of all religious bodies to conduct marriages.

2 Exactly which Indian religions are included in this description has never been explained or clarified. It is generally thought to refer to Muslim and Hindu marriage officers, but it could logically include others. Historically, Muslim imams and Hindu priests have not generally applied to be appointed as marriage officers.

3 Subject to the recent extensions of rights to spouses from these marriages by the courts, which does not form part of this article. On this history, see Rautenbach 2000; Amien 2010.

4 In Women’s Legal Centre Trust v President of the Republic of South Africa 2022 5 SA 323 (CC) the Constitutional Court declared the Marriage Act and the common law definition of marriage unconstitutional for failing to recognize Muslim marriages. Muslim religious marriages are therefore now legally valid and similar problems may arise in future with co-existing Muslim and civil marriages. However, the judgment does not deal with co-existing marriages and legislation has not yet been adopted, so the position remains uncertain.

5 Act 120 of 1998.

6 South African Law Reform Commission Project 144 Single Marriage Statute, Discussion Paper (2021), Department of Home Affairs Green Paper on Marriages in South Africa Government Gazette no 44557 of 11 May 2021; Department of Home Affairs White Paper on Marriages in South Africa https://forsa.org.za/slug/white -paper -on -marriages -in -south -africa/accessed 5 April 2023. This culminated in the Draft Marriage Bill of 2022 Government Gazette no 48914 of 7 July 2023.

7 Lobolo, lobola, bohali and other terms refer to the custom of bridewealth paid to the family of the bride in South and Southern Africa. For the centrality of this custom in pre-colonial times see Kuper 2016.

8 Black Administration Act 38 of 1927 hereinafter the Black Administration Act s 22.

9 Brought about by the Marriage and Matrimonial Property Law Amendment Act 3 of 1988.

10 The female respondents in the study by Higgins et al 2006 were opposed to their husbands taking additional wives in customary marriages, but felt powerless to prevent it.

11 Section 22 as it was prior to the amendments brought about by the Marriage and Matrimonial Property Amendment Act 3 of 1988 and also after amendment, but before adoption of the RCMA. See also Osman 2019 PELJ 3-6 for the historical background of this provision.

12 Constitution of the Republic of South Africa 108 of 1996 s 39(2).

13 Sections 2(1), 2(2). See, however, on the interpretation of s 10(4) of the RCMA, Bonthuys and Pieterse 2000, 623.

14 Act 70 of 1979 (hereafter the Divorce Act).

15 RCMA s 8(4) contains provisions relating to polygynous customary marriages, the intervention of traditional leaders in dispute resolution and customary solutions relating to maintenance.

16 [2016] 2 All SA 833 (ECM).

17 See, however, on the interpretation of s 10(4) of the RCMA Bonthuys and Pieterse 2000, 623.

18 The process is set out in the Matrimonial Property Act 88 of 1984 s 21.

19 They are sections 18 and 19 (on the proceeds of delictual damages and delictual liabilities in the joint estate) s 20 (early division of the joint estate) and 24 (on the proprietary effects of a marriage which is void due to lack of parental consent).

20 However, Manthwa and Ntsoane 2022, 517 argue that return of lobolo at divorce is not universally practiced.

21 On the contest between the rights of rural women and traditional leaders in customary courts and decision-making structures, see also Claassens 2013; Mnisi Weeks 2011; Mnisi Weeks 2013.

22 In South Africa, see the Law of Evidence Amendment Act 45 of 1988 s 1.

23 Lack of space and the fact that the legislative process still continues means that this topic must be explored elsewhere. See, however, Bonthuys 2024 for a discussion of the complicated history and some consequences of these recommendations.