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Maintenance in polygamous marriages

A polygamous marriage is where somebody marries more than one person. This is legal where parties are married according to Islamic Rights and various other customary marriages, and occurs frequently in South Africa. The Maintenance Act 99 of 1998 requires a spouse to maintain an ex-spouse.

A question arose in the recent decision of Khan v Khan 2005 (2) SA 272 (T) as to whether the Maintenance Act, more specifically the provisions of Sec 2(1), the legal duty to maintain an ex-spouse, also extends to polygamous marriages. The court decided that partners in a Muslim marriage, married in accordance with Islamic Rights, whether monogamous or not, were entitled to maintenance, and that the Maintenance Act therefore also applied to these marriages.

The Judge in this case, in arriving at his decision, very often referred to the Constitution. The act emphasises a fair and equitable maintenance system based on the rights in the Constitution. A court has to take note of the present times and society that we live in.

In arriving at its decision in the abovementioned case, the court referred to the decision in Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC). In this case the court said that in determining maintenance the courts should look at how others perceived the couple and whether family responsibilities were shared. The court explained the purpose of “family law” as being to protect vulnerable family members and to ensure fairness in disputes that arose at the end of relationships.

Polygamous marriages are a very interesting form of marriage in South Africa. We have quite a few different cultures in South Africa each with their own set of rules and legislature, and it important for legal practitioners also to be able to sort out the termination of these marriages. It is important to realise that polygamous marriages are a type of family and have to be protected by family law.

This article was written by Cape Town divorce lawyer, Peter Baker

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