The "Inadequately Married" : extending the putative marriage doctrine to assist vulnerable parties in invalid customary marriages

Abstract

This thesis considers whether the putative marriage doctrine can be developed to assist parties that find themselves in invalid customary marriages. The thesis focuses on situations where a customary marriage is considered invalid in circumstances where a party does not meet specific legislative or customary requirements. In most instances, these women are left without protection and regulation of the proprietary consequences of the so-called marital estate. The research considers the putative marriage doctrine as a remedy to this challenge. The doctrine is utilised where one or both parties believe in good faith that their marriage is valid when, in fact, one or more of the material requirements for marriage have not been met. Currently, the judgment of Zulu v Zulu 2008 (4) SA 12 (D) impedes the doctrine's application in polygamous customary marriages and thus impedes its use by women who are found in invalid customary marriages. The research carries out a comparative analysis of Californian and Namibian family law, in order to consider how other jurisdictions deal with similar situations. The thesis further proposes a framework to develop the putative marriage doctrine in a way that ensures the protection of customary wives in subsequent marriages that are declared invalid.