A woman who thought she was lawfully married for six years has lost her claim to her late partner’s estate — because he never divorced the wife he married through customary law more than 40 years ago.
The Mthatha High Court in the Eastern Cape has effectively ruled that a customary marriage does not dissolve with time, distance, or silence — only with a formal divorce decree issued by a court.
The man at the centre of the case was a long-serving miner at Beatrix Mine in Welkom, Free State.
He took his life in October 2023, leaving behind two women who each believed they were his lawful wife.
No existence of divorce decree
The judgment, handed down on June 5 by Acting Judge Masonwabe Mhambi, carries significant implications for South Africans who separate under customary law without going through the courts.
To protect the privacy of those involved, the court redacted all names from the public ruling.
According to the court record, the deceased mineworker had paid lobola for the first woman in 1978, consisting of seven live cows, R10 in cash (uswazi), R15 (imvula mlomo), R20 (isazimzi) and R20 (igqeshe).
Emissaries from his family paid for these, held a traditional welcoming ceremony, and formally incorporated the woman into his household.
The couple had four children together and separated in 1998 while the man was employed in Welkom.
However, crucially, the couple never obtained a divorce order.
Under South African law, as codified in the Recognition of Customary Marriages Act, a customary marriage “may only be dissolved by … a decree of divorce”.
Validity of the union challenged
Years later, the man entered into a romantic relationship with another woman from Swaziland.
As part of Swazi cultural practice, he was required to pay a black and white heifer to her family before marriage.
She told the court that the man assured her that he had no wife, having allegedly expelled the first woman.
They lived together from around 2011 and eventually registered a civil marriage in November 2017.
However, when the first wife attempted to register her marriage after the man’s death in 2023, she discovered that he had already been civilly married to someone else.
She approached the court to challenge the validity of that union.
The acting judge dismissed the second woman’s argument that she witnessed the man making a telephone call to his first wife, where he allegedly said he had “taken a new wife”.
According to the court, such actions did not amount to a valid dissolution of marriage.
“The customary marriage does not dissolve because the parties feel it has broken down,” said Mhambi. “It is the court that must be satisfied … and issue the decree of divorce.”
Marriage declared null and void
The court ruled that the civil marriage was void from the outset.
“The civil marriage contracted between the [second woman] and the deceased … is declared to be null and void ab initio.”
The judge also found the first wife’s version more credible, as she submitted confirmatory affidavits from the deceased’s brother and a local headwoman.
In contrast, the civil wife provided no supporting statements from family members to back her claims.
The Department of Home Affairs has been ordered to register the customary marriage within 15 days, after which the Master of the High Court must administer the deceased’s estate, recognising the first wife as the legitimate spouse and her three surviving children as legal heirs.
The second wife has been ordered to pay the costs of the application.
