A recent ruling by the Johannesburg High Court has reaffirmed that customary marriage in South Africa is not exempt from legal safeguards — especially when it comes to polygamy. In a case brought by a first wife, the court declared her husband’s second customary marriage invalid on the grounds that he had not obtained her consent, as required by law.

The dispute arose after the man entered into a second marriage under customary law while still married to his first wife. She challenged the legality of the new union, arguing that she had neither been consulted nor had she given her permission — a clear violation of the requirements set out in the Recognition of Customary Marriages Act 120 of 1998.

The court agreed. It found that, although polygamy is recognised under customary marriage law, a husband cannot marry a second wife without following a specific legal process — one that includes notifying and obtaining the consent of the first spouse. In failing to do so, the man had effectively violated both the spirit and the letter of the law.

This case has brought renewed attention to the question: Can a husband marry a second wife without the first wife’s permission? The answer — firmly grounded in legislation — is no. Not if the marriage is to be legally valid and recognised by the state.

What the Customary Marriage Act Says About Polygamy

Polygamy is legally recognised in South Africa under certain conditions — but it is not automatic, nor is it informal. The Recognition of Customary Marriages Act makes provision for customary marriages involving more than one spouse, provided that specific procedures are followed.

According to Section 7(6) of the Act, a husband who wishes to enter into a second customary marriage must first apply to the High Court to approve a written contract that will regulate the future matrimonial property system of all parties involved. This application must be made with the knowledge of the first wife, and her informed consent is central to the process.

This requirement exists to ensure fairness and protect the financial and legal interests of all spouses. The law acknowledges the cultural legitimacy of polygamous marriages, but it places a legal obligation on the husband to disclose his intention and to obtain court approval before concluding a subsequent marriage.

In the case recently decided by the Johannesburg High Court, the man failed to approach the court and did not involve his first wife in the decision to marry again. This failure to comply with the Act’s requirements was central to the court’s finding that the second customary marriage was legally invalid.

Does a Man Need Permission to Marry a Second Wife in South Africa?

Yes — under South African law, a man does need permission to marry a second wife if he is already in a valid customary marriage. The Recognition of Customary Marriages Act does not permit a husband to unilaterally take another wife without following a formal legal process.

Before a second marriage can be concluded, the husband must:

• Inform his first wife of his intention;
• Obtain her informed consent; and
• Apply to the High Court for approval of a written contract that will regulate the financial arrangements of the proposed polygamous family structure.

This contract is designed to protect the rights of all parties involved, including property and inheritance rights. The High Court plays an oversight role to ensure the agreement is fair and enforceable, particularly when the existing marriage is in community of property, or subject to any other matrimonial property regime.

Failure to follow these steps has serious legal consequences. As seen in the recent court ruling, a husband who marries a second wife without first wife permission risks having that marriage declared null and void. The second marriage has no legal effect, and the rights of the second spouse — including those relating to maintenance, inheritance, or shared assets — may not be recognised.

This principle reflects a growing body of South African case law aimed at ensuring that customary marriages are both culturally legitimate and constitutionally compliant. Custom does not override the rights of existing spouses — and where consent is not given, the law will intervene.

Legal Requirements for a Valid Customary Marriage in South Africa

For a customary marriage in South Africa to be legally valid, it must meet the criteria set out in the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998). These requirements apply to both monogamous and polygamous marriages and are intended to ensure that all parties understand and consent to the union.

The following are the core legal requirements for a valid customary marriage:

• Both parties must be over the age of 18.

Customary law cannot override the age of majority as prescribed by national legislation.

• Both parties must consent to the marriage.

A marriage concluded without the full and free consent of either party is invalid, regardless of cultural practice.

• The marriage must be negotiated and entered into in accordance with customary law.

This includes the observance of traditional rites and customs specific to the cultural community of the parties, such as lobola negotiations or ceremonial recognition by families.

• The marriage must be registered with the Department of Home Affairs, although failure to register does not by itself render the marriage invalid — as long as the other requirements have been met. However, registration helps protect the legal rights of the spouses, especially in disputes.

When it comes to polygamous marriages, the requirements become more specific. If a husband in an existing customary marriage wishes to marry another woman, he must:

1. Notify his first wife of his intention;
2. Obtain her informed consent; and
3. Apply to the High Court for the approval of a written contract governing the matrimonial property system among all parties.

Without this court-approved contract, any subsequent marriage is not legally recognised, even if traditional ceremonies have taken place. This was a key issue in the recent court case, where the husband's second union was invalidated due to his failure to comply with these requirements.

Consequences of Entering Into a Second Marriage Without Consent

When a man enters into a second customary marriage without first obtaining the necessary consent and court approval, the consequences are far-reaching — both for himself and for the woman he seeks to marry.

In the case decided by the Johannesburg High Court, the husband’s second marriage was declared null and void. The court found that he had not followed the steps required by the Customary Marriage Act, including failing to apply for judicial approval and failing to obtain his first wife's informed consent. As a result, the second union had no legal standing.

The legal consequences of such an invalid marriage include:

• No recognition under South African law

The second marriage cannot be registered, enforced, or recognised by government institutions. The woman entering into the second union is not legally considered a spouse, regardless of any cultural or ceremonial proceedings.

• No access to spousal rights

The second wife is not entitled to any spousal benefits — including inheritance, maintenance, or access to marital property — because the marriage has no legal effect.

• Possible criminal or civil liability

While entering into an invalid marriage is not a criminal offence on its own, it can form the basis for legal action if it results in prejudice or financial harm to any party involved — particularly the first spouse.

• Legal uncertainty for children and dependants

Although the rights of children born into such unions are protected under the Constitution, the lack of formal spousal recognition can complicate matters of guardianship, succession, and access to benefits.

This case sends a clear message: Can a husband marry a second wife without first wife permission? Legally, no. Without formal consent and court involvement, the marriage will not be recognised, and the consequences can be severe — emotionally, financially, and legally.

Why the Court Declared the Second Marriage Invalid

The Johannesburg High Court judgment in this matter hinged on the question of consent — and whether the second wife’s customary marriage to the deceased could be valid where the first wife had never agreed to it.
The deceased, whose name was withheld from the judgment, married his first wife, NRM, in 2017 after lobola negotiations were concluded according to Bapedi and Swati customs. The two lived together as husband and wife and had a child together. Their marriage was never dissolved by divorce, and they remained legally married at the time of the husband’s death in 2023.

In 2019, the man began a relationship with another woman, FN, with whom he moved in permanently. He never returned to his first wife. FN and the deceased later concluded both a civil marriage in 2020 and a customary marriage in 2021.

After the man died in a car accident in February 2023, FN was listed in the obituary as his surviving spouse and served as chief mourner. However, NRM launched legal proceedings, challenging FN’s status and seeking a declaration that the second marriage was unlawful. She argued that:

• She had never divorced her husband;
• She had not been consulted or given consent for a second marriage; and
• The second marriage violated the Recognition of Customary Marriages Act.

FN opposed the application, arguing that she was unaware of the first marriage and that, in any case, it had broken down irretrievably. She claimed that because the deceased no longer lived with NRM and only paid maintenance under a court order, the relationship had effectively ended. FN further argued that under Swati and Bapedi custom, the first wife’s consent was not required.

Judge Ratshibvumo disagreed. He made several critical findings:

• There was no divorce. Only a court can declare that a marriage has ended due to irretrievable breakdown — FN’s claim that the marriage was functionally over was legally irrelevant without a divorce order.
• Customary and civil law marriages are both by default in community of property, meaning any subsequent marriage has implications for estate rights and must follow legal process.
• Both marriages were concluded under customary law, despite the civil registration, because they were entered into in line with traditional rites. This made Section 7(6) of the Act applicable — requiring High Court approval and first-wife consent, which was never obtained.
• The judge cited the Mayelane v Ngwenyama decision by the Constitutional Court, which changed customary law to require the consent of the first wife in polygamous marriages. That judgment had been binding since 2013 and was not followed in FN’s case.
• While FN referred to a conflicting Pretoria High Court ruling where a second marriage was upheld despite a lack of consent, Judge Ratshibvumo said that court had erred by ignoring the Mayelane decision.

As a result, the court declared FN’s customary marriage invalid. Her claim to the deceased’s estate was rejected. The Master of the High Court was ordered to recognise NRM as the lawful surviving spouse, and FN was ordered to pay the legal costs of the application.

VDM Attorneys – Customary Marriage and Family Law Attorneys

Entering into a second customary marriage without following the correct legal process can leave spouses unprotected and marriages legally invalid. South African law is clear: a man cannot marry a second wife without the first wife's consent and High Court approval.

If you need advice on customary marriage law, our team can help. We assist with High Court applications, matrimonial property systems, and disputes involving civil and customary unions.

Contact VDM Attorneys — experienced family and marriage law attorneys in Sandton.