Section 7(6) of the Recognition of Customary Marriages Act: Court Approval Before a Further Customary Marriage in South Africa

A first wife often only discovers the problem at the worst possible moment. Her husband has died, or the marriage has broken down, and a second woman appears claiming to be his customary wife. In many of these cases, the husband never approached the High Court under section 7(6) of the Recognition of Customary Marriages Act 120 of 1998 to obtain approval of a contract regulating the future matrimonial property system of his marriages. The consequences for the first wife, for the prospective second customary wife in South Africa, and for the estate can be serious.

This article explains what section 7(6) of the Recognition of Customary Marriages Act requires, how it differs from the validity requirements in section 3, how Mayelane v Ngwenyama fits in, and what the affected parties can do when the rule was ignored. It is written for readers dealing with a real dispute, not a theoretical one.

What section 7(6) of the Recognition of Customary Marriages Act actually requires

Section 7(6) applies where a husband already in a customary marriage wishes to enter into a further customary marriage. Before that further customary marriage is concluded, he must apply to the court for an order approving a written contract regulating the matrimonial property system of all his customary marriages, existing and future. The section is directed at the proprietary regime, not the celebration of the marriage itself.

The court, when considering the application, must under section 7(7) terminate the matrimonial property system currently applicable where the existing marriage is in community of property or subject to the accrual system, effect a division of the matrimonial property, ensure an equitable distribution, and take into account all the relevant circumstances of the family groups that would be affected. The court may amend the terms of the contract, grant the order subject to conditions, or refuse the application if the interests of any of the parties would not be sufficiently safeguarded by the proposed contract.

The order does not create the marriage. It regulates the property consequences that will apply once the further customary marriage is concluded. That distinction is the single point most readers get wrong.

Validity of the marriage and the matrimonial property regime are two different questions

Section 3 of the Recognition of Customary Marriages Act sets out the requirements for validity of a customary marriage entered into after commencement of the Act. The prospective spouses must both be above the age of 18, they must both consent to be married to each other under customary law, and the marriage must be negotiated and entered into or celebrated in accordance with customary law.

Section 7(6), by contrast, is not a validity provision. It regulates how the matrimonial property system of a polygynous customary marriage is structured through a court-approved contract. The two questions can be answered independently. A further customary marriage may satisfy the section 3 requirements yet have no section 7(6) order in place. The absence of the section 7(6) order does not, on the face of the statute, invalidate the marriage. The proprietary consequences, however, are a separate and often difficult problem.

Readers should also be careful about section 7(1) of the Act. It has been affected by constitutional litigation and by the 2021 amendments introduced by Act 1 of 2021. Its current operation should not be assumed from a plain reading of the original statutory text. Where the proprietary regime of a pre-Act polygynous customary marriage is in issue, legal advice is required rather than an assumption based on the wording of the section as first enacted.

Mayelane v Ngwenyama and the consent of the first wife

The Constitutional Court in Mayelane v Ngwenyama 2013 (4) SA 415 (CC) held that, in the context of Tsonga customary law, the consent of the first wife is a requirement for the validity of a subsequent customary marriage. The case sits alongside section 3, not inside section 7(6). It concerns whether the further marriage is validly concluded at all, not whether the property regime has been regulated.

The ratio in Mayelane v Ngwenyama was expressly linked to Tsonga customary law. Whether the same consent requirement extends to every cultural group that recognises polygyny remains contested. Lower courts continue to grapple with how far the reasoning applies. The article should not be read as suggesting a universal consent rule across all South African customary law communities. Where the applicable customary law of the parties is uncertain, that question must be dealt with on its own facts and evidence.

The practical point for a first wife is this. Even if her consent was not obtained and Mayelane v Ngwenyama applies to her cultural context, her remedy on the validity of the further marriage is under section 3 read with Mayelane. Her remedy on the property consequences is under section 7(6) and, on divorce or death, under section 8(4) of the Act.

What the section 7(6) application looks like in practice

The application is brought by way of a notice of motion in the High Court, supported by a founding affidavit and the proposed written contract regulating the matrimonial property system. All persons with a sufficient interest must be joined. Under section 7(8) that includes, in particular, the applicant’s existing spouse or spouses and his prospective spouse. Confirmatory affidavits from those spouses assist the court, although they are not a substitute for proper joinder and service.

The proposed contract must address how the assets and liabilities of the existing marriage or marriages will be dealt with, and how ownership, management and division of assets in the concurrent marriages will be regulated going forward. If the contract is silent, unclear or one-sided, the court can refuse the application under section 7(7)(b)(iii).

If the court grants the application, section 7(9) requires the registrar or clerk to furnish each spouse with a court order and a certified copy of the contract, and to send the order and certified copy to the registrar of deeds for the area in which the court sits. That step matters. It is one of the checks a first wife, a prospective further wife or an executor can perform to test whether a section 7(6) order actually exists.

Timing is the single biggest practical pitfall. The application must be brought before the further customary marriage is concluded. The courts have treated section 7(6) as a prior authorisation mechanism. It cannot ordinarily be used retrospectively once the further marriage has already been celebrated, and it cannot be used at all once the husband has died. Locating and serving all existing wives, particularly where spouses are estranged or living in different provinces, often causes further delay. Substituted service may be required before the application can proceed.

If you are dealing with a section 7(6) issue and need to know where you stand, contact Vermeulen Attorneys to arrange a consultation with our family-law team.

What happens when no section 7(6) order was obtained

The absence of a section 7(6) order does not, on its own, automatically invalidate the further customary marriage. That is a common overstatement and it should be avoided. The validity of the further marriage is a section 3 question, not a section 7(6) question, and where Mayelane v Ngwenyama applies it is also a first-wife-consent question.

What the absence of the order does mean is that the matrimonial property system of the concurrent marriages has never been judicially approved. That produces uncertainty. On divorce or death, the court dealing with the dissolution or the estate must work out what the parties’ proprietary rights actually are, without the benefit of the contract and order contemplated by section 7(6). Section 8(4)(b) requires a court granting a decree of dissolution of a polygynous customary marriage to take into account any contract, agreement or order made in terms of section 7(4), (5), (6) or (7). Where none exists, the court is left to reach an equitable outcome from first principles, on the evidence.

For the first wife this often means her assumed proprietary position turns out to be different from what she believed. For the prospective second wife it often means her claim as a spouse is legally precarious, even where lobolo was paid and the customary ceremony took place. For the estate it often means litigation.

What the first wife, the second wife and the executor can do

The first wife may seek a declaratory order on the validity or otherwise of the further customary marriage, oppose recognition of the further wife by the executor, claim a share of the joint estate, or, on divorce, ask the court under section 8(4) to make an equitable order taking into account the absence of any section 7(6) contract. Where she has been prejudiced by the husband’s conduct, contribution and redistribution claims may be considered on their facts.

The prospective second customary wife in South Africa may need to establish, on evidence, that her marriage complies with section 3, that any consent requirement flowing from Mayelane v Ngwenyama has been met in her cultural context, and that she is a spouse for purposes of the estate. Where she cannot establish spousal status, an alternative claim as a permanent life partner may exist on the facts of some cases, subject to the developing case law in that area.

The executor of a deceased estate must not simply accept or reject the further wife’s status without a proper enquiry. That enquiry should include verifying whether a section 7(6) order and approved contract exist, whether the section 3 requirements were met, and how the concurrent marriages affect the distribution.

Evidence and documents to gather before consulting an attorney

The strength of any claim usually turns on the documents. Readers should preserve:

• any customary marriage registration certificates and identity documents;
• lobolo agreements or negotiation notes;
• photographs or videos of the ceremony;
• contact details of family members or elders who attended the negotiations or the ceremony;
• bank statements, title deeds, vehicle registration documents, insurance policies and pension or employment benefit records evidencing jointly acquired assets;
• any correspondence in which the husband referred to the further marriage or to his intention to enter into it;
• any private contract or antenuptial-style document drawn up but not made an order of court. Its absence from any court record is often the decisive evidence that no section 7(6) order was ever obtained.

To review your documents and understand what they show about validity and matrimonial property, book a consultation with Vermeulen Attorneys.

Common misconceptions about a further customary marriage

Several assumptions surface repeatedly and none of them is safe.

The first wife should not assume that her marriage is automatically out of community of property, or that a further customary marriage has no effect on her proprietary rights, or that her refusal to consent means the further marriage cannot happen at all.

The prospective second wife should not assume that lobolo and the customary celebration alone make her a spouse for all legal purposes, without regard to section 7(6) and any applicable customary-law consent requirement.

The husband should not assume that obtaining the first wife’s consent is enough. Consent, where it is required, addresses validity. It does not replace the section 7(6) court order regulating the property regime.

Registration at Home Affairs does not cure the absence of a section 7(6) order. Registration is a formal recording of the marriage. It is not a judicial approval of the matrimonial property system.

A privately drawn contract that was never made an order of court is not a section 7(6) contract. Section 7(9) requires the court order and the certified contract to be sent to the registrar of deeds. Without that, the document may be evidence of the parties’ intentions, but it is not the order the Act requires.

When to get attorneys involved

If you are a first wife who has discovered that your husband has taken a further customary marriage, a prospective second wife whose position is being contested, or a family member or executor trying to make sense of the estate, the earliest possible legal advice is usually the difference between an orderly outcome and prolonged litigation. Vermeulen Attorneys’ family-law team can assess the validity of the marriages, work out the proprietary consequences, and advise on the remedies available on the facts.

To discuss your position with an attorney, contact Vermeulen Attorneys to arrange a consultation.

Frequently Asked Questions

Is a second customary marriage valid in South Africa without a court order?

Not automatically invalid, but not safely valid either. Validity is governed by section 3 of the Recognition of Customary Marriages Act, and in a Tsonga customary-law context by Mayelane v Ngwenyama, which requires the consent of the first wife. Section 7(6) governs the property regime, not validity. A further marriage may satisfy section 3 yet still leave the property consequences unresolved because no section 7(6) order was obtained.

Does my husband need my consent to take a second wife under customary law?

In a Tsonga customary-law context, Mayelane v Ngwenyama requires the consent of the first wife for a subsequent customary marriage to be valid. Whether the same requirement applies in your particular customary-law context depends on the applicable customary law and the facts. Consent is a validity question. It does not replace the section 7(6) court order regulating the property regime.

What happens to a customary marriage when the husband dies and a second wife appears?

The executor must establish whether each claimed marriage meets the section 3 validity requirements and whether a section 7(6) order was ever obtained. Where no section 7(6) order exists and the husband has died, one cannot be obtained now, because the section cannot be used retrospectively or after death. The estate is then distributed on the facts, and disputes commonly end up in court.

Can a section 7(6) order be obtained after the further customary marriage has already taken place?

Generally no. The courts have treated section 7(6) as a prior authorisation. The application must be finalised before the further customary marriage is concluded. Once the further marriage has been celebrated, the section is not available to fix the omission. The same applies once the husband has died.

Does registering a further customary marriage at Home Affairs make it valid?

No. Registration records the marriage. It does not confirm compliance with section 3 or cure the absence of a section 7(6) order. Under section 4(9) of the Act, failure to register does not affect validity, and the converse is also true. Registration does not confer validity that the marriage does not otherwise have.

What matrimonial property regime applies to a polygynous customary marriage without a section 7(6) order?

There is no simple default answer. Section 7(1) of the Recognition of Customary Marriages Act was substantially affected by the 2021 amendments and by constitutional litigation, and the position depends on when the marriages were entered into and on the applicable facts. Where no section 7(6) order was obtained, the court dealing with divorce or the estate must work out an equitable outcome on the evidence, informed by section 8(4)(b) of the Act.