“The Inadequately Married:” Extending the Putative Marriage Doctrine to Assist Vulnerable Parties in Invalid Customary Marriages

This article considers whether the putative marriage doctrine can be developed to assist those who find themselves in invalid customary marriages. The article considers the nature of the putative marriage doctrine, that is, as a remedy 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 has not been met. The article focuses on situations where a customary marriage is considered invalid and where, in particular, women are left without protection and regulation of the proprietary consequences of the marital estate. Currently, the judgment of Zulu v Zulu impedes the doctrine’s application for property division in polygamous customary marriages. Through a comparative analysis of Californian and Namibian family law, this article suggests that the judgment is wrong, or at least short-sighted, in its failure to apply the doctrine in these circumstances. I then propose a framework that develops the putative marriage doctrine in a way that ensures the protection of customary wives in subsequent marriages that are declared invalid.