B.M v B.V.N and Another (2612/2015) [2016] ZAECMHC 9 (29 March 2016)

B.M v B.V.N and Another (2612/2015) [2016] ZAECMHC 9 (29 March 2016)

The court found that, following the enactment of the Recognition of Customary Marriages Act, customary marriages may only be dissolved by a court decree. The applicant and the deceased did not obtain such a decree, and thus their marriage remained valid at the time the deceased purported to marry the first respondent. The subsequent marriage to the first respondent was therefore void ab initio. The Fund's decision to recognize the first respondent as the surviving spouse was incorrect and contrary to the Act. The applicant is declared the only surviving spouse, and the costs are to be borne by the estate of the deceased.

Citation
[2016] ZAECMHC 9
Parties
Applicant: B. M.; Respondent: B. V. N.; Respondent: The Administrator Government Employees Pension Fund
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
29 March 2016
Case Number
2612/2015
Procedural Posture
Urgent Application / Judgment
Outcome
Application granted. The applicant is declared the only surviving spouse. The marriage between the deceased and the first respondent is declared unlawful, invalid, and of no force or effect. Costs to be paid by the estate of the deceased.
Judges
S M Mbenenge
Legal Topics
Customary Marriage, Dissolution of Marriage, Recognition of Spouses, Declaratory Relief
Family and Children Customary Marriage Dissolution of Marriage Recognition of Spouses Declaratory Relief

Case Brief

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Parties

B. M.

Applicant

B. V. N.

Respondent

The Administrator Government Employees Pension Fund

Respondent

Procedural Posture

Urgent Application / Judgment

Legal Issues

  1. 1 Whether the applicant is the sole surviving spouse of the deceased.
  2. 2 Whether the marriage between the deceased and the first respondent is void ab initio under the Recognition of Customary Marriages Act.
  3. 3 Whether the dissolution of the first customary marriage was effected in accordance with the Act.

Ratio Decidendi

The court found that, following the enactment of the Recognition of Customary Marriages Act, customary marriages may only be dissolved by a court decree. The applicant and the deceased did not obtain such a decree, and thus their marriage remained valid at the time the deceased purported to marry the first respondent. The subsequent marriage to the first respondent was therefore void ab initio. The Fund's decision to recognize the first respondent as the surviving spouse was incorrect and contrary to the Act. The applicant is declared the only surviving spouse, and the costs are to be borne by the estate of the deceased.

Court Disposition

Application granted. The applicant is declared the only surviving spouse. The marriage between the deceased and the first respondent is declared unlawful, invalid, and of no force or effect. Costs to be paid by the estate of the deceased.

Orders

  • The applicant is declared to be the only surviving spouse of the late T. I. S.
  • The customary marriage between the deceased and the first respondent is declared unlawful, invalid, and of no force or effect.