The question arises constantly. The Marriage Act (Chapter 280) answers it in section 71(8), read with section 3(1).
To each other — yes
This section does not prevent the parties to a customary marriage from going through a form or ceremony of marriage under Part V, if neither of them is a party to any other subsisting customary marriage.
Section 71(1) otherwise prohibits people already legally married to each other from going through a form or ceremony of marriage with each other, and prohibits a celebrant from purporting to solemnise such a marriage.
Because a customary marriage is a legal marriage — section 3(2) says so — without subsection (8) a customary couple could not have a church or registry wedding under Part V. Section 71(8) removes that obstacle.
Neither party may be party to any other subsisting customary marriage. So where a man is in a polygamous customary marriage, he cannot go through a Part V ceremony with any of his wives while the other customary marriages subsist.
The word “other” is doing the work: the customary marriage to the person he is marrying under Part V is not a bar; a customary marriage to anyone else is.
The practical effect is that section 71(8) accommodates monogamous customary marriage and excludes polygamous arrangements from the statutory system.
To different people — no
| Situation | Provision | Result |
|---|---|---|
| Subsisting Part V marriage; wants a customary marriage to someone else | s 3(1) — excludes “a native who is a party to a subsisting marriage under Part V” | No capacity to enter the customary marriage |
| Subsisting customary marriage; wants a Part V marriage to someone else | s 17 — void where either party is lawfully married to some other person | The second marriage is void |
| Either of the above | s 57 | Bigamy — a criminal offence |
Note the different techniques. Section 3(1) does not declare a later customary marriage void; it says that a person party to a subsisting Part V marriage is not among those who may enter a customary marriage. The person lacks the capacity.
Section 17 works the other way, declaring a Part V marriage void where either party is at the time lawfully married to some other person. A subsisting customary marriage is a lawful marriage for that purpose.
Either way the result is the same: one marriage at a time, once the statutory system is engaged.
A religious ceremony is different again
Section 4 — religious rites or ceremonies may be performed in connexion with a customary marriage. That is not a Part V marriage at all.
Section 71(5) — two people already legally married to each other may go through a religious ceremony of marriage, provided they produce a certificate of their existing marriage and a signed, witnessed written statement that they previously went through a ceremony, that they are the parties named in the certificate, and that they have no reason to believe they are not legally married.
Where a ceremony is performed under section 71(5), section 71(6) provides that sections 37, 39 and 45 do not apply, and the person performing it must not issue a certificate of marriage under the Act, or any other document unless it describes the parties as already legally married to each other.
Section 71(7) then protects the celebrant: a person who is not an authorised celebrant does not commit an offence under section 64 merely by performing such a ceremony where the section 71(5) requirements were met.
So a couple already married may have a blessing without creating a second legal marriage — but no certificate is issued, and nothing about their legal status changes.
Practical guidance
- Decide what you want the ceremony to achieve. A Part V marriage under section 71(8) produces a certificate and puts the marriage in the statutory system. A section 71(5) religious ceremony produces neither.
- Tell the celebrant which it is. A celebrant who solemnises a Part V marriage between people he knows or has reason to believe are already legally married, otherwise than in accordance with section 71, is acting in breach of section 71(1)(b).
- Check for other customary marriages. Section 71(8) is unavailable if either party has another subsisting customary marriage.
- Never marry a different person while a marriage of either kind subsists. That is bigamy, and the second marriage is void.
Sources
- Marriage Act (Chapter 280) — ss 3, 4, 17, 37, 39, 45, 57, 64, 71
- Matrimonial Causes Act (Chapter 282)
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.