The petitioner sought a divorce from her husband under common law rather than Islamic rite. After several years of marriage, (i) the petitioner discovered that the respondent had lied about being divorced prior to their marriage, (ii) the respondent stopped supporting her financially, and (iii) the respondent neglected their relationship. After she started a business to provide for herself, the respondent employed his former wife’s relatives to “spy and scorn her to leave the house.” The matter was brought to their religious leader, who ordered the couple to three months’ separation to see whether reconciliation was possible. During that period, the respondent lived with his former wife, admitted to other extra-marital relationships, continued to harass the petitioner for conjugal relations, and declared that he did not want her as his wife, which he believed should have legally relieved him of their marriage. The petitioner subsequently applied for divorce in the High Court. The respondent contested adjudicating the matter before the High Court, arguing (i) that the divorce should have been adjudicated by religious leaders rather than a secular court and (ii) that he believed that the marriage was already dissolved given his declaration to his religious leader that he no longer wanted to be married (although no witnesses testified to hearing the respondent pronounce the “talaq” against his wife). The High Court emphasized that courts do not have a monopoly on divorce; for example, couples can divorce by mutual agreement at custom before village civic authorities or other tribunals. However, even in such situations, if one party is wronged or does not consent to the divorce, that party can seek resolution in a secular court. The High Court concluded that the respondent’s alleged “divorce” was not valid, as the respondent had violated the tenets of his faith with his extramarital affairs, harassment of his estranged wife, and lies to lure her into the marriage. Emphasizing the equal status of husband and wife under the Constitution, the Court held that the respondent’s summary declaration of a dissolved marriage in this case, especially as it was unjustified, did not conform to the principles of justice, equality, and morality, and granted the petitioner the divorce under law.
Women and Justice: Keywords
Domestic Case Law
Sande v. Sande High Court of Malawi (2009)
R v. Soko and Another Chief Resident Magistrate's Court (2010)
The two accused persons were charged and convicted of having carnal knowledge against the order of nature –contrary to Section 153(a) of the Penal Code, which is understood to prohibit same-sex sexual relations. In the alternative, the two accused persons were charged with indecent practices between men contrary to Section 156 of the Penal Code. Both of the accused persons pleaded not guilty but were convicted of both charges and sentenced to the maximum penalty of 14 years of imprisonment including hard labor. The two accused persons had conducted a traditional engagement ceremony, or chinkhoswe. They held themselves out to be husband and wife, and the second accused person identified as a woman but the court consistently referred to her as a man. The court found that both accused committed the crimes charged. In sentencing the two accused persons to the maximum punishment available, the court cited their perceived lack of remorse and their attempt to “seek heroism […] in public, and […] corrupting the mind of a whole nation with a chinkhoswe ceremony.” The court explicitly described the sentences of 14 years imprisonment with hard labor as deterrents so that the public could be “protected from others who may be tempted to emulate their [horrendous] example.” In closing, the court stated, “let posterity judge this judgment.” According to multiple news sources (e.g., the BBC), the President of Malawi pardoned both accused persons and they were subsequently released from prison with a warning not to resume their relationship.
Mayelane v. Ngwenyama Constitutional Court of South Africa (Konstitusionele Hof van Suid Afrika) (2013)
The issue in this case was to what extent, in Xitsonga customary law, the absence of a first wife’s consent to her husband’s subsequent polygamous marriages affects the validity of those marriages. In this case, the applicant entered into a customary marriage with the deceased in 1984. The applicant objected to the respondent’s claim that she entered a valid customary polygamous marriage to the deceased in 2008, 13 months before the deceased’s death. The Court held that, in accordance with its obligation to develop living customary law in a manner consistent with the Constitution’s protection of human dignity and equality, Xitsonga customary law had to be developed to include a requirement that the first wife’s consent is necessary to validate any of her husband’s subsequent customary marriages. Guided by this principle, the Court held invalid the marriage of the decedent to the respondent.
Ramuhovhi and Others v. President of the Republic of South Africa and Others Constitutional Court of South Africa (Konstitusionele Hof van Suid Afrika) (2018)
In this case, the Constitutional Court held that §7(1) of the Recognition of Customary Marriages Act 120 of 1998 (RMCA) was inconsistent with 172(2) of the Constitution, and therefore invalid, because it unfairly discriminated against women in polygamous customary marriages entered into before the enactment of the RMCA on the bases of gender and race, ethnic, or social origin. This case followed Gumede v. President of the Republic of South Africa, in which it was held that §7(1) was invalid as to monogamous customary marriages, but left the question of polygamous customary marriages for Parliament. The effect of this ruling was that pre-RCMA marriages continued to be governed by customary law, while post-RCMA marriages were automatically out of community of property. The Court declared that, in the interim until Parliament changes the RCMA, a husband and his wives in pre-RCMA polygamous customary marriages must share equally in the right of ownership of, and other rights attaching to, family property, including the right of management and control of family property.
Re Caveat by Clara Sackitey: Re Marriage Ordinance High Court at Accra (1962)
This case concerns the criteria for what constitutes a valid customary marriage. In question was whether or not the respondent was precluded from marrying another as a result of the prior customary marriage alleged. The case arose after the complainant filed a caveat against the issue of a registrar’s certificate in respect to an alleged ordinance marriage between the respondent and another woman. The complainant claimed that she was married to the respondent under customary law at a ceremony held in March 1958 at which both her family and the respondent’s family were present and that was presided over by the head of the larger family to which both of the families belong; that the ceremony called “fiapun” in Adangbe was performed; and that the respondent’s family provided drinks and a customary fee for the marriage. Therefore, the complainant claimed that the respondent was precluded under Ordinance from marrying another. The respondent denied that the ceremony held in March 1958 constituted a lawful marriage under customary law and further maintained that whatever relationship subsisted between him and the complainant was determined by their subsequent separation. The Court confirmed that the essential pre-requisites laid out in Yaotey v Quaye. It also held that consent by the two parties’ families may be actual or constructive. The Court held that the unrefuted evidence presented by the complainant of the ceremony and cohabitation contained all the essential elements of a valid customary marriage. The Court also held that since the marriage is as much the families’ concern as it is the concern of the two individuals, the agreement of the parties to live apart does not affect their legal status, and the marriage will subsist until the marriage is dissolved by the family. The Court confirmed that a marriage under the Ordinance and a customary marriage was mutually exclusive, and the existence of one precluded the other. The complainant’s application for prohibition of the Registrar of Marriages from issuing the certificate was sustained, as she and the respondent were still married under customary law.
Negulu v. Serugga High Court of Uganda (2013)
Here, the Court held that failure to register a customary marriage did not necessarily invalidate it and that one can be considered customarily married as soon as the customary ceremonies of a tribe have been performed.
Hosho v. Hasisi High Court of Zimbabwe (2015)
This was a dispute involving property in the name of the plaintiff and occupied by the defendant. The plaintiff sought an order for the eviction of the defendant, claiming that he had lawfully acquired the property. The defendant claimed that she was the rightful owner as the surviving spouse of the previous owner of the property through an unregistered customary law union. The court held that defendant had no right to the property as there was no concrete evidence supporting the existence of her customary marriage. The court explained that although the absence of a formal marriage certificate is not fatal to the recognition of a customary law union in matters of inheritance and constitutional protections for surviving spouses and children, the union must be proven to exist. Payment of a roora/lobola, or bride price, remains the most cogent and valid proof of a customary union/marriage, particularly where it has not been formally registered because the ceremony itself involves representatives from both families and others who could attest to the process having taken place. Furthermore, there is often documentary evidence of what had been paid and what remained to be paid. Here, the court held for the plaintiff because there was no evidence of a roora/lobola payment and the defendant could not prove her customary marriage to the deceased.
Jezile v. State High Court of South Africa: Western Cape Division (Hooggeregshof van Suid Afrika: Wes Kaap Afdeling) (2015)
The appellant was convicted in a regional magistrates' court of one count of human trafficking, three counts of rape, one count of assault with intent to cause grievous bodily harm, and one count of common assault against a 14-year-old schoolgirl, whom he had married in accordance with customary marriage laws. After she ran away from the appellant, the appellant took the complainant to Cape Town by taxi, where they resided with the appellant's brother and his wife. There, the incidents of rape and assault occurred. The appellant raised as one of his defenses and as a ground of appeal that the alleged rapes took place in the context of a customary arranged marriage, or ukuthwala. According to expert evidence, ukuthwala was an irregular form of initiating a customary marriage. Experts have stated that, in its traditional form, ukuthwala was consensual and innocuous, but there existed an 'aberrant' form in which young girls were abducted and often raped and beaten to force them into marriage. The magistrate held that the matter was not about ukuthwala and its place in our constitutional democracy, but about whether the state had shown that the accused had committed the offences he was charged with and, if so, whether he acted with the knowledge of wrongfulness and the required intent. The court held that child-trafficking and any form of abuse or exploitation of minors for sexual purposes is not tolerated in South Africa’s constitutional dispensation. Furthermore, it ruled that the appellant could not rely on traditional ukuthwala as justification for his conduct because practices associated with an aberrant form of ukuthwala could not secure protection under the law. Thus, the Court could not find that he did not traffic the complainant for sexual purposes or that he had committed the rapes without the required intention ̶ even on the rather precarious grounds of appellant’s assertion that his belief in the aberrant form of ukuthwala constituted a 'traditional' custom of his community.
Die appêlant is skuldig bevind in 'n streek magistraat hof op een geval van mensehandel, drie gevalle van verkragting, een geval van aanranding met die opset om ernstige liggaamlike skade te berokken en een geval van algemene aanranding teen ’n 14 jarige skoolmeisie met wie hy getroud is volgens die gebruiklike huwelikswette. Nadat sy weggehardloop het van die appèllant, het die appèllant die klaer per taxi na Kaapstad geneem waar hulle by die broer van die appellant en sy vrou gewoon het. Daar het die voorval van verkragting en aanranding gebeur. Die appèllant het as verdediging en op gronde van ’n appel beweer dat die sogenaamde verkragting plaas gevind het binne konteks van ’n gebruiklike gerëelde huwelik of ‘ ukuthwala’. Volgens kundige getuienis was ukuthwala ’n onreëlmatige vorm om ’n gebruilike huwelik te begin. Kenners meen dat ukuthwala in sy traditionele vorm, konsensueel en onskuldig was maar dat daar ’n afwykende vorm bestaan waarin jong meisies ontvoer en dikwels verkrag en geslaan is om hulle tot die huwelik te dwing. Die landdros het gesê dat die aangeleedheid nie oor ukuthwala en die plek daarvan in ons grondwettige demokratse gaan nie maar wel of die staat bewys het dat die beskuldigde die misdrywe gepleeg het waarvoor hy aangekla is en indien wel, of hy opgetree het met die wete van onregmatigheid en die vereiste opset(intent). Die hof het beslis dat mensenhandel of uitbuiting van minderjariges vir seksuele doeleindes nie geduld word in Suid-Afrika se gondwetlike bedeling nie. Verder het dit beslis dat die appèllant nie op die tradisionele ukuthwala kon staatmaak as regsverdediging vir sy optrede nie omdat prakyke wat verband hou met ’n afwykende vorm van ukuthwala nie beskerming onder die wet verkry nie. Die Hof kon dus nie bevind dat hy die klaer nie vir mensenhandel met seksuele doeleindes gebruik het nie en dat hy die verkragtings sonder die verwagte intensie gepleeg het nie - selfs op die taamlike onveilige gronde van die bewering van die appellant dat sy geloof in die afwykende vorm van ukuthwala, ’n tradisionele gewoonte in sy gemeenskap is.
Gumede v. President of the Republic of South Africa & Others Constitutional Court of South Africa (Konstitutionele Hof van Suid Afrika) (2008)
Mrs. and Mr. Gumede, both domiciled in KwaZulu-Natal, entered into a monogamous customary marriage in 1968 and four children were born during their marriage. Because she was forbidden by her husband to take up employment, Mrs. Gumede never worked and could not contribute to the accumulation of the family’s estate, which included two family homes. She was always the primary caregiver of the children. After forty years, the marriage broke down irretrievably. Mrs. Gumede had no family and was dependent for financial support upon her children and her old-age pension. In 2003, Mr. Gumede instituted divorce proceedings before the Divorce Court. Mrs. Gumede also approached the High Court and obtained an order invalidating the discriminatory legislative provisions on which the Divorce Court could rely. The Constitutional Court subsequently was approached by the Minister of Home Affairs and the KwaZulu-Natal Member of the Executive Council for Traditional Leaders and Local Government Affairs who resisted the order, for the reevaluation of the order of the High Court declaring constitutionally invalid certain sections of the Recognition of Customary Marriages Act, of the KwaZulu Act on the Code of Zulu Law 16 of 1985 and certain sections of the Natal Code of Zulu Law (Proc R155 of 1987), which regulate the proprietary consequences of customary marriages. In a lengthy judgment, the Constitutional Court took great pains to explain that any distinction between the consequences of customary marriages entered into before and after the Recognition of Customary Marriages Act came into operation is discriminatory, inconsistent with the Constitution, and invalid. The Constitutional Court noted the international instruments that South Africa has ratified that prohibit forms of discrimination against women, including CEDAW. It held that the two provisions are patently discriminatory, unfair, and not justifiable. In terms of the judgment, all monogamous customary marriages entered into before the Recognition of Customary Marriages Act came into operation are now ipso facto in community of property, excluding customary marriages which had been terminated by death or by divorce before the date of the judgment. The Constitutional Court further held that the constitutional invalidity of Section 7(1) was limited to monogamous marriages and should not concern polygynous relationships or their proprietary consequences, determining that polygynous marriages should continue to be “regulated by customary law until parliament intervenes.”
Mev. en Mnr. Gumede, beide in KwaZulu-Natal gedomisilieer, het 'n monogame huwelik in 1968 aangegaan en vier kinders is tydens hulle huwelik gebore. Omdat sy deur haar man verbied is om te werk, het Mev. Gumede nog nooit gewerk nie en kon nie bydra tot die bydrae van die familie se boedel nie, wat twee familie-huise ingesluit het. Sy was altyd die primêre versorger van die kinders. Na veertig jaar het die huwelik onherstelbaar verbrokkel. Mev. Gumede het geen familie gehad nie en was afhanklik van finansiële steun van haar kinders en haar pensioen. In 2003 het Mnr. Gumede egskeiding verrigtinge voor die Egskeidingshof ingestel. Mev. Gumede het ook die Hooggeregshof genader en 'n bevel verkry wat die diskriminerende wetgewende bepalings waarop die Egskeidingshof op kon staatmaak, ongeldig maak. Die Konstitusionele Hof is vervolgens deur die Minister van Binnelandse Sake en die KwaZulu-Natal lid van die Uitvoerende Raad vir Tradisionele Leiers en Plaaslikeregeringsake wat die bevel teengestaan het, vir die herevaluering van die bevel van die Hooggeregs Hof wat sekere afdelings van die Wet op die Erkenning van Gebruiklike Huwelike, van die KwaZulu- Wet op die wet op Zoeloe Wetgewing 16 van 1985 en sekere afdelings van die Natalse wet op Zulu regte (B.proc R155 of 1987), wat die gevolge van gebruiklike huwelike reguleer, ongrondwetlik verklaar het. In 'n lang uitspraak het die Konstitusionele Hof baie moeite gedoen om te verduidelik dat enige onderskeid tussen die gevolge van gebruiklike huwelike wat voor en na die inwerkingtreding van die Wet op Erkenning van Gebruiklike huwelike aangegaaan is, diskriminerend, strydig is met die Grondwet en ongeldig is. Die Konstitusionele Hof het kennis geneem van die internasionale instrumente wat Suid-Afrika bekragtig het wat vorme van diskriminasie teen vroue verbied, insluitend CEDAW. Dit het beslis dat die twee bepalings oorwegend patriminerend, onbillik en nie regverdigbaar is nie. Ingevolge die uitspraak is alle monoggame gebruiklike huwelike aangegaan voor die Erkenning van Gebruiklike Huwelike Wet in werking gekom het, tree nou ipso facto binne gemeenskap vangoedere op, uitsluitend gebruiklike huwelike wat beëindig is deur die dood of deur egskeiding voor die datum van die vonnis. Die Konstitusionele Hof het verder bevind dat die grondwetlike ongeldigheid van artikel 7(1) beperk was tot monogame huwelike en behoort nie poligame huwelike of hul eie gevolge te bemoei nie, met die bepaling dat poligame huwelike steeds gereguleer word deur gewoontereg totdat die Parlement ingryp.
Nxumalo v. Ndlovu Supreme Court (2011)
The executor of the estate of a deceased man (the appellant) brought an application to the High Court for a declaration that the civil marriage to the respondent was bigamous and invalid because of a number of pre-existing customary marriages between the deceased and three other women. The deceased considered the marriages over when the women left him and never returned. The deceased had executed a will and later four codicils. The High Court found that the respondent’s civil law marriage was a lawful marriage in community of property, and the will was declared null and void. The appeal is of the order of the High Court. The Supreme Court heard testimony from one of the wives married to the deceased under customary law and from experts in Swazi law and custom relating to the dissolution of customary marriages. The Supreme Court found in favour of the appellant. The decision of the High Court was set aside and the Master of the High Court was to appoint a suitable and proper person to administer the deceased estate. This case is important as it illustrates the importance and status of Swazi law.
Public Ministry and Civil Party Mawazo Safi v. Mewnyibamba Kabale & Passy Nyakura Court of Greater Instance of Bukavu (2001)
The “Civil Party” brought allegations of adultery against her husband and the “cohabitant”, claiming her husband abandoned her to live with the cohabitant despite her earlier marriage with her husband in 1980. The Civil Party and her husband had three children before he moved away. A dowry was regularly paid on the marriage throughout and no party contests the 1980 marriage. As such, the marriage could generally qualify under Congolese law as a ‘monogamous customary marriage’ under the law of November 30, 2000, which does not require the date of the marriage or any registry number to be filed with the State. The Civil Party’s husband and his cohabitant claim the civil party knew and authorized their cohabitation because she refused to relocate with her husband when his work required him to do so and that she visited them at their home, all of which she contests. Despite the lack of contest by any party to the prior marriage and recognition that a monogamous customary marriage exists here, the Tribunal suspended the case until the marriage was registered because Article 380 of the Congolese Family Code requires a ‘monogamous customary marriage’ to be registered before either party can exercise rights in court. (Available on pages 136-137 on linked site.)
Nkabane v. Nkabane High Court of Lesotho (1987)
The plaintiff wife sought a decree of divorce on the grounds of the defendant's desertion on the grounds that the defendant abused her and drove her out of the matrimonial home to live with another woman. The Court found that the defendant was previously married through Lesotho customary law to the other woman at the time of the marriage to the plaintiff; thus, the defendant's marriage to the plaintiff was null and void. However, the Court declared that the relationship was a "putative marriage" for the purposes of dividing the plaintiff and defendant's joint property.
Theko v. Theko High Court of Lesotho (1982)
The plaintiff-wife sought the dissolution of her marriage to the defendant on the grounds of his previous marriage under the Sotho custom. The Court declared the marriage to be null and void on the grounds that the plaintiff agreed to the marriage through fraud, believing that the defendant was unmarried at the time and would not have agreed to the marriage if she had known the truth.
Legislation
Constitution of Malawi (2017)
In recognition of the inherent dignity and worth of each human, Article 12 requires that the State and all persons recognize and protect human rights and afford the fullest protection to the rights and views of all individuals, groups, and minorities. All persons have equal status before the law. Limitations of rights are only justifiable insofar as they ensure peaceful human interaction in the context of an open and democratic society. Article 13 requires the State to actively promote the welfare and development of the people by affirmatively adopting legislation and policies to achieve gender equality. This requires: (i) women’s full participation in all spheres of society with opportunities equal to men; (ii) the implementation of nondiscrimination principles and other measures; and (iii) the implementation of policies addressing domestic violence, personal security, maternity benefits, economic exploitation, and rights to property, among other relevant social issues. Article 22 mandates that all members of a family shall enjoy equal respect and shall be protected under law against all forms of neglect, cruelty or exploitation. No person shall be forced to enter into any marriage, and no person over the age of 18 can be prevented from entering into marriage. All provisions of this section apply to civil, customary, and other forms of marriage. Article 24 specifically guarantees that women are entitled to full and equal protection of law, and have the right not to be discriminated against on the basis of gender or marital status. This includes the following rights: (i) equal rights under civil law, including equal capacity in the realms of contracts, property, custody, decision-making regarding children, and acquisition and retaining of citizenship and nationality; and (ii) upon the dissolution of marriage, entitlement to fair disposition of jointly held property and to fair maintenance. Further, any laws that discriminate against women are invalid and legislation must affirmatively be passed to eliminate customs and practices that discriminate against women. This affirmative requirement particularly applies to practices of: sexual abuse, harassment, or violence; discrimination in work, business, or public affairs; and deprivation of property (inherited or otherwise). Article 30 provides that, while all persons have a right to the enjoyment of economic, social, cultural and political development, women in particular shall be given special consideration in regards to this right. The State must take all necessary measures for the realization of this right, including reforms aimed to eradicate social injustice and inequality. Other gender-related provisions include: the prohibition of torture, inhumane, and degrading treatment or punishment (Article 19); Article 20’s ban on all forms of discrimination; the right to education for all people (Article 25); Article 27’s prohibition of slavery, servitude, and forced labor; and Article 31’s requirement that all persons are entitled to fair wages and equal remuneration for equal value work without discrimination of any kind, especially on the basis of gender.
The Customary Marriage and Divorce (Registration) (Amendment) Law (1991)
This amends the previous law to make the registration of customary marriages optional rather than mandatory. The law also makes optional notification to the state of the dissolution of customary marriages registered under the act. The amendment mandates that a marriage performed under customary law under the act will follow customary intestate succession law granting that the reviewing court or tribunal is satisfied by oral or documentary evidence that the deceased and surviving spouse had been validly married under customary law.