The Courts Revisit Polygyny and the Recognition of Customary Marriages Act 120 of 1998

Abstract

Historically, African customary marriage was regarded as abhorrent by the European community owing to its polygynous nature and the institution of lobolo, and because of which they did not recognise such marriages and relegated them to the official status of ‘unions’. As a consequence, the courts had in effect ‘bastardised almost the entire Native population’. It is trite to say that this caused immense suffering for African families, especially for women and children who were excluded from legal protection in the familial environment. Over the years their position was remedied to a limited extent by legislation that, in certain circumstances, afforded them the same protection provided to spouses and children from civil marriages.