Further thoughts on polygamy

An alert reader of this Blog emailed to ask whether clauses 3(2) and 10(1) of The Recognition of Customary Marriages Act (Act no 120 of 1998) may not be unconstitutional because these provisions only allow men who marry in terms of customary law to marry more than one spouse.

It seems to me contradictory in nature, applying double standards and finally discriminating against persons amongst others on “ethnic … origin”, “marital status”, “sexual orientation” (taking “sexual orientation”  in the widest possible interpretation of the words) and “religion, conscience, belief” – this is thus unconstitutional in terms of Clause 9(3) of the Constitution.   By denying people married in terms of The Marriage Act, 1961, the right to conclude a legally binding traditional marriages with other women, it seems to also interfere with the right of freedom of association….

The prohibition of polygyny in practice denies a significant number of women the right to enter into a legally binding marriage with a man. Fact is that there are more women than men.  The unbalanced numbers become worse the older people become, as women generally live longer than men.  Even if it is only a possibility rather than the reality the prohibition of polygyny in the Marriage Act, 1961, denies possible surplus women the right of entering into a legally binding marriage with a man, de facto forcing such women to either live celibate or enter into an extramarital relationship with a married man with very little legal protection.

Is it the task of the state to prescribe to its citizens how many women may be legally married to one man or is it the task of the state to protect the rights of all persons equally who enter into a marriage relationship, irrespective of the number people involved?

Other readers have also defended the practice of polygamy and the provisions of the law which legally recognizes the practice, on the ground that women who enter into polygamous marriages choose to do so. The state has no right to interfere with the choices made by individuals regarding whom they wish to marry and whom not, so the argument goes, as this interferes with their right to freedom of association and their right to marry (which the Constitutional Court found in the Dawood case was implicitly protected by the right to human dignity).

First, the legal recognition of polygamous marriages is limited by the Ac to marriages concluded in terms of “customary law” which is defined in the Act as “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples”. A white man raised in Sandton or Bellville will therefore not be able to enter into a legally valid polygamous marriage. As South African customary law generally does not recognize the right of women to take more than one husband (Modjadji the Rain Queen is said by some to be an exception), women – even those living in terms of African custom – will usually not be allowed to conclude polyandrous marriages.

Second, personally I tend to be a libertarian regarding the legal recognition of various forms of intimate relationships and if I was a member of the legislature I would argue for the expansion of the legal recognition of multi-partner marriages to include all South Africans – including marriages between more than two men or women and marriages between one women and many men, regardless of the customary law or common law traditions which might be applicable to the individuals involved.

As long as the law protects the rights of all the parties and ensures – as far as the law is capable of ensuring – that one or more of the parties to such an arrangement are not subjugated or discriminated against, there seems to be no inherent logical reason for the legislature not to extend the legal recognition of multi-partner marriages to all individuals who choose to enter into them.

Third, the question of choice is a complex one. Research has shown that the “choice” of a woman to enter into a marriage or not to enter into a marriage (or to enter into a polygamous marriage) is often circumscribed by the  differences in economic power between the woman and the man and by culture and tradition which accords men more power than woman in intimate relationship choices. Many woman who wish to marry their partners do not marry because their male partners do not wish to marry because they fear the legal obligations that would flow from such a marriage.

The Volks v Robinson case in which Miss Robinson looked after her partner for 15 years but was denied any claim to be maintained by his deceased estate because he chose not to marry her when he was alive, is a good example of how a woman can be denied some financial and legal benefits because of her relative weak position vis-a-vis her partner.

The law should therefore protect such individuals who “choose” not to marry or who “choose” to enter into a polygamous marriage because without such protection they might well suffer sex and gender discrimination. The Recognition of Customary Marriages Act (as well as other legislation dealing with the financial consequences of marriage and its dissolution) attempts to provide such protection to women – even when such marriages are polygamous.

Fourth, the argument that section 3(2) and 10(1) of the Act discriminates against (i) woman who wish to marry more than one partner; (ii) individuals in same-sex relationships who wish to marry more than one partner; or (iii) individuals who do not live in accordance with African customary law but wishes to marry more than one partner is an intriguing one, but (I suspect) is an argument that will be rejected by the Constitutional Court.

Section 9(3) of the Constitution prohibits unfair discrimination and the Constitutional Court has argued that discrimination would be unfair if the different treatment has the effect of undermining the human dignity of those excluded. A court will weigh up all relevant factors and will look, in particular, at whether the group complaining of discrimination has suffered past discrimination in the context of the complaint and whether this “discrimination” may not be justified because it achieves an important governmental purpose.

I suspect the Court will argue the law as it stands achieves two important goals: it recognizes the traditions and customs of a particular section of the community whose traditions and customs have been disrespected by the apartheid state while also recognizing the general societal goal of limiting marriage to two individuals. At the same time, the law does not send a signal that those who are prohibited from entering multi-partner marriages are less worthy of concern and respect and does not fundamentally affect their human dignity.

Whether this is a good argument is debatable. However, judicial politics, which demands that courts should be slow to interfere in social arrangements and should try and defer to the legislative branch of government if the infringement of rights occasioned by social norms is not fundamental (as it clearly was in the case of the prohibition on same-sex marriage), mitigates against a judicial finding that would extend marriage to all who wish to enter into multi-partner marriages.

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