South Africa’s constitution allows for laws to be passed that recognise religious and traditional marriages as well as personal and family law systems. These are systems that regulate marriage, divorce, matters affecting children – including guardianship, custody, access, maintenance and inheritance.
This is a radical departure from the colonial and apartheid era when South Africa’s common law definition of marriage was seen simply as a union between one man and one woman. In other words, a legal marriage in South Africa was characterised by heteronormativity and monogamy. Same-sex marriages and potentially polygynous marriages were excluded from the legal definition of marriage. This affected African customary marriages, Muslim marriages, Jewish marriages and Hindu marriages, which are all potentially polygynous.