CHAMBOKO v CHAMBOKO & ANOR 1998 (2) ZLR 516 (H)

Flynote

Family law — marriage — husband married in solemnised customary union subsequently purporting to enter into a marriage with another woman under the Marriage Act — whether second marriage valid

Headnote

Where a man enters into a customary union which is solemnised in terms of the Customary Marriages Act [Chapter 5:07] he may not, during the subsistence of that marriage, contract a marriage to another person in terms of the Marriage Act [Chapter 5:11]. If he does so he commits the crime of bigamy. In civil law, although the competence of a person married under the Customary Marriages Act remains intact, s 16 of the Act provides that a marriage registered under the Act can only be dissolved by a court of competent jurisdiction. This means that the where a man is married in terms of the Customary Marriages Act and he wishes to enter into a marriage with another woman in terms of the Marriage Act he must first seek a dissolution of his customary marriage by a court. If he purports to enter into the second marriage under the Marriage Act before he has divorced his customary law wife, the second marriage will be invalid.

In order to give proper guidance to the public about the impermissibility of contracting a marriage under the Marriage Act without first dissolving a prior customary law union, the legislature should give serious consideration to amending the statutory law in this regard, so as to make it quite clear that a marriage solemnised in terms of the Customary Marriage Act is a complete bar to a marriage in terms of the Marriage Act, unless such marriage is contracted between the same parties. The provisions of s 16 of the Customary Marriages Act alone do not give proper guidance to the public in this regard.