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TINA HOKWANA | Polygamist forfeits share of pension in divorce to 1st wife

Couple still married in customary law despite divorce

Tina Hokwana Legal Practitioner
Husband who married 2 wives without first wife’s consent forfeits half share of pension fund interest.
Husband who married 2 wives without first wife’s consent forfeits half share of pension fund interest. 
Image: 123RF

A husband with four wives instituted divorce proceedings against the first wife, claiming a decree of divorce, a division of the joint estate as well as 50% of the first wife’s pension interest.

In her counterclaim, the first wife claimed a decree of divorce and forfeiture of the benefits of the marriage in community of property in relation to the immovable property, motor vehicles as well as her pension benefits.

In his testimony, the husband said that they had a civil marriage in 1993. In 2002, he then wanted to marry a second wife and the first wife agreed.

He said that he paid lobola for his second wife in 2002 and this marriage was celebrated in the church. 

He was then asked what happened to his civil marriage with the first wife and he responded that he was advised by his attorneys to divorce the first wife.  Further, he explained that his first marriage, in his words, "was put on hold", meaning he would temporarily divorce the first wife to marry his second wife.

He further testified that he took on a third and fourth wife in 2010 and 2018 with the consent of the first wife. He also called two of his wives to confirm that the first wife had given consent to their marriages.

The first wife confirmed that she concluded a civil marriage with the husband in 1993 and this marriage was dissolved in 2005 for the husband to marry the second wife.

She, however, denied that she consented to the husband’s marriage to the third and fourth wives although she purchased the dresses for the wedding. Her explanation in this regard was that she was saving on the costs and did not want unreasonable amounts to be paid for the dresses. 

In its analysis, the court determined that the parties’ civil marriage was dissolved in 2005 but that the parties continued to live as husband and wife and at the time of the hearing they were still husband and wife in terms of customary law. This would mean that they were married in community of property. 

In determining whether the first wife consented to the third and fourth marriage, the court referred to the husband’s testimony that the first wife’s consent was recorded in the register of the church. The husband, however, failed to produce a copy of the register evidencing such written consent.

In evaluating the testimony of the two wives called as witnesses, the court found that their evidence was not helpful in that they too recounted that written consent was provided by the first wife in the register but no proof was produced. The judge took note that said witnesses remain married to their husband and therefore the court must be cautious in accepting such evidence which favours their husband.

The court therefore concluded that the first wife’s consent was not provided and for that reason, the husband committed substantial misconduct in that he married the third and fourth wife without her consent.

In addition, the first wife had proven that the husband would be unduly benefited if half of her pension interest or benefit was awarded to him. The same, however, could not be said in respect of the rest of the joint estate and the court concluded that the assets are to remain in the joint estate to be divided equally between the parties. 

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