Polygamy has deep cultural and historical significance in South Africa, particularly within customary marriages. While the practice is legally recognised, it comes with complex legal and financial considerations, particularly regarding property regimes and antenuptial contracts. Understanding how polygamy in South Africa works, the marriage structure, and the legal protections available is essential for all parties involved.
In this blog, we explore what polygamy is, its legal status in South Africa, the implications for marital property, and the role of antenuptial contracts in polygamous unions.
What is Polygamy in South Africa?
Polygamy refers to the practice of having multiple spouses at the same time. In South Africa, it is legally recognised under customary law, which applies primarily to marriages conducted according to traditional African customs.
The Recognition of Customary Marriages Act (RCMA) of 1998 allows a man to marry multiple wives, provided the marriage follows the cultural customs and traditions of a recognised ethnic group. However, polygamy is not permitted under civil marriage law, meaning a person married under the Marriage Act (a civil union) cannot legally enter a polygamous marriage.
Legal Framework for Polygamous Marriages
1. Recognition of Customary Marriages Act (RCMA) (1998)
The RCMA provides the legal framework for polygamous customary marriages. Key provisions include:
- All customary marriages must be registered with the Department of Home Affairs.
- Spouses have equal rights within the marriage.
- If a husband wishes to take an additional wife, he must obtain court approval regarding the proprietary consequences of the marriage.
2. The Role of the High Court in Approving Multiple Marriages
Before entering into a second or subsequent marriage, the husband must apply to the High Court for an order regulating how property and assets will be divided among the spouses. This prevents financial disputes and ensures fair treatment of all wives.
3. Property Rights in Polygamous Marriages
Without a clear property agreement, polygamous marriages can create financial and inheritance disputes. Each marriage has its own financial implications, making it essential for spouses to have clarity on their rights when pursuing polygamy in South Africa.
Antenuptial Contracts and Property Regimes in Polygamous Marriages
Since South African law automatically applies community of property to marriages without an antenuptial contract, polygamous marriages introduce significant financial risks if property ownership is not clearly defined.
1. Marriage in Community of Property
If no antenuptial contract is signed, a husband and his first wife share a joint estate. When additional wives enter the marriage, legal issues arise, as the husband is already in a joint estate with his first wife. This can complicate:
- Ownership of property and businesses
- Financial obligations and debt responsibility
- Inheritance and succession planning
2. Marriage Out of Community of Property (With or Without Accrual)
To avoid complications, polygamous marriages should be structured out of community of property by signing an antenuptial contract.
(a) Without Accrual System
- Each wife retains individual ownership of her assets.
- There is no financial sharing between spouses unless specifically agreed upon.
(b) With Accrual System
- Each wife and husband retain separate estates, but any wealth accumulated during the marriage is shared.
- If the marriage ends, the wife is entitled to half of the accrual difference.
This system provides financial independence while ensuring fair distribution of wealth accumulated during the marriage.
3. Court-Approved Property Agreements
To add additional wives, the husband must obtain court approval for how property will be handled. The court ensures that:
- The first wife’s financial interests are protected.
- The new wife’s rights are legally secured.
- There is fair division of assets among all spouses.
Inheritance and Estate Planning in Polygamous Marriages
One of the biggest challenges in polygamous marriages is inheritance distribution. If the husband dies without a will (intestate), all wives and children have equal claims under the Intestate Succession Act.
To avoid disputes, it is crucial to:
- Draft a comprehensive will outlining how property should be distributed.
- Establish separate estates for each wife through antenuptial contracts.
- Use trusts and estate planning to ensure financial security for all spouses.
Challenges of Polygamy in South Africa
While legally recognised, polygamy comes with significant legal and social challenges, including:
- Financial Burden – Supporting multiple families can be costly.
- Inheritance Disputes – Multiple spouses and children may contest asset distribution.
- Legal Complexity – Managing multiple marriages requires court approvals and structured agreements.
- Social Stigma – Polygamy remains controversial, particularly in urban and modern communities.
Conclusion
Polygamy in South Africa is legally complex and requires careful financial and legal planning. Whether you are considering a customary polygamous marriage or are already part of one, it is essential to understand:
- The legal requirements under the Recognition of Customary Marriages Act.
- The importance of a court-approved property agreement to protect all spouses.
- The role of an antenuptial contract in safeguarding individual assets.
If you are in or considering a polygamous marriage, consult a legal expert to ensure that your marital property regime is structured correctly, protecting all parties involved. Proper legal planning today can prevent major financial disputes in the future.
FAQs
1. How many wives can a South African have?
There is no legal limit to the number of wives a man can marry under customary law. However, each subsequent marriage must be approved by the High Court, and the husband must demonstrate how property and financial arrangements will be structured.
2. What is the new polygamy law in South Africa?
Proposed legal reforms aim to ensure:
- Equal financial protection for all wives.
- Greater regulation of inheritance rights.
- Stricter requirements for registering customary marriages.
Currently, polygamy is only legally recognised under customary marriage law, not civil marriage law.
3. Who is the man with many wives in South Africa?
The most well-known polygamist in South Africa is Jacob Zuma, the former president, who has multiple wives under customary law. His marriages highlight the legal and financial complexities of polygamy in South Africa.
4. Is polyamory legal in South Africa?
Polyamory (having multiple romantic partners with consent) is not illegal, but it is not legally recognised as a marriage structure. Only customary polygamous marriages (where one man marries multiple wives) are legally protected under South African law.