Page 22 - SAReform Book

20 Reform of Customary Marriage, Divorce and Succession in SA 3.3.1 Registration
The registration of polygynous marriages is in line with what people on the ground regard as the proper way of organising and arranging affairs between a husband and his wives in a polygynous marriage. The research participants believed that the state should be involved in regulating these affairs and there was widespread consensus that polygynous marriages should be registered. However, our findings, in line with existing research evidence, demonstrate that husbands are not registering polygynous marriages. More specifically, we found that the first wife played a key role in the registration process.
The South African Law Commission failed to consider what implications this might have for implementation of the RCMA. In particular, it failed to consider the challenge of obtaining the first wife’s consent and the impact that this would have on the entitlements of the second and subsequent wives. Based on our findings, more serious consideration should be given to the role of the first wife, as this has significant consequences. The findings demon- strated that in some cases a first wife is responsible for finding a second wife for the husband. In this case should she also be responsible for ensuring the registration of the second marriage? The answer to this question requires further investigation as it raises complex issues about the rights of the wives (the first and subsequent wives).
3.3.2 The contract to regulate matrimonial property
The study has shown that the registration procedures for spouses in polygy- nous marriages have had little impact. Included in these procedures are the requirements of s 7(6), which compel the husband to obtain a High Court- approved contract to regulate the property of the polygynous marriage. Very few of these contracts have been registered.
The issues concerning the process in s 7(6) suggest that this process should not be removed from the court altogether. Instead, because some of the practices on the ground already regulate polygynous marriages in ways that support the RCMA, the process should be opened up to extra-judicial regula- tion. For example, a person wanting to marry polygynously could marry at the DHA, and the registering officer could be responsible for ensuring that the contract is entered into at that point. At the time of the registration of the marriage, the registering official could be made responsible for ensuring that the parties actually meet to discuss and enter into a contract. The agreement could be recorded in the certificate and could be made an appendix of the registration records.
In the case of contracts obtained through the court procedures, currently the husband is solely responsible for bringing an application to the court for the registration of a contract. The wives only have the right to be joined to the application. This approach places too much power in the hands of the party who has nothing to lose if the contract is not concluded, and fails to serve the needs of the vulnerable — in this case, the women. We therefore recommend that the law should be changed to allow either of the wives (the existing wife