The answer depends entirely on which of the two forms of marriage is in question.
Under custom
A customary marriage is entered into in accordance with the custom prevailing in the tribe or group, and is valid and effectual for all purposes.
Section 3 contains no rule limiting a person to one customary marriage. Whether a second customary marriage is valid depends on what the applicable custom says.
Where the custom of the relevant tribe or group permits a man to take more than one wife, and its requirements are satisfied, each marriage is a valid customary marriage — and each wife is a spouse for the purposes of every law that turns on marriage: maintenance, inheritance, adultery actions, and the rest.
Where the custom does not permit it, a purported second marriage is not a valid customary marriage.
Under Part V — no
| Provision | Effect |
|---|---|
| s 17 | A marriage is void where, at the time, either party is lawfully married to some other person |
| s 57 | Bigamy — a criminal offence |
| s 3(1) | A person party to a subsisting Part V marriage has no capacity to enter a customary marriage |
| s 71(8) | A customary couple may go through a Part V ceremony only if neither has another subsisting customary marriage |
The words in section 17 are “lawfully married to some other person”. A subsisting customary marriage is a lawful marriage — section 3(2) says so expressly.
So a man in a valid customary marriage who goes through a Part V ceremony with a different woman contracts a void marriage, and commits bigamy.
The bar runs in both directions. Section 3(1) prevents a person already in a Part V marriage from entering a customary marriage at all.
Where the two systems collide
A man in a polygamous customary marriage cannot bring any of those marriages into the statutory system. Section 71(8) allows a Part V ceremony between customary spouses only if neither of them is a party to any other subsisting customary marriage.
The consequence is practical: polygamous customary families cannot obtain marriage certificates, and must rely on evidence of custom whenever proof of the marriage is needed — on death, for benefits, or in litigation.
A frequent situation: a couple marry by custom, later have a church wedding under Part V, and the husband afterwards takes a second wife by custom.
The Part V ceremony — valid under section 71(8) if there was no other subsisting customary marriage — makes him a party to a subsisting Part V marriage. Section 3(1) then denies him the capacity to enter any customary marriage. The purported second marriage is not a valid customary marriage.
Anyone in a customary marriage considering a Part V ceremony should understand that it closes the door on any further customary marriage.
Consequences for the family
- Children. Their status does not depend on the validity of the parents’ marriage. Parental responsibility and the duty to maintain a child under the Lukautim Pikinini Act 2015 apply regardless, and section 54 of the Marriage Act addresses legitimacy where a marriage is void.
- Maintenance. A woman whose purported marriage is void is not a spouse for maintenance under the Matrimonial Causes Act, but child maintenance is unaffected — see child maintenance orders.
- Inheritance. Only a lawful spouse takes as a spouse. Where a second marriage is void, the woman’s position depends on custom or on any provision made for her.
- Adultery. The Adultery and Enticement Act 1988 turns on sexual intercourse between a married person and someone other than their spouse — so which marriages are valid determines who may sue.
- Protection of women. Section 5 allows a Local Court to forbid a customary marriage where a woman objects and excessive pressure has been brought to bear, or it would be a hardship to compel her to conform to custom.
Sources
- Marriage Act (Chapter 280) — ss 3, 5, 17, 54, 57, 71
- Matrimonial Causes Act (Chapter 282); Adultery and Enticement Act 1988; Lukautim Pikinini Act 2015
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.