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customary marriage

Constitution of Malawi

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.

Demba v. Demba

On appeal, the High Court considered a divorce decree. The High Court considered the allegation that African customary law required women to be housekeepers, engage in the domestic sphere, and that failure to fulfill these duties legally could result in a divorce. The High Court agreed that customary requirements of women within the household, when not being fulfilled during the course of a marriage, were sufficient grounds for divorce.

Gumede v. President of the Republic of South Africa & Others

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.

Hosho v. Hasisi

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.

Jezile v. State

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.

Le Code des personnes et de la famille (Persons and Family Code)

The Persons and Family Code of Benin which came into force in 2002 contains a number of provisions that protect women’s rights with respect to their spouse, the marital home, and the upbringing of children. For example, Article 1030 provides that uncodified customary law in Benin, which traditionally was discriminatory against women, is superseded by the Persons and Family Code. Article 119 of the Code states that marriage requires the consent of both spouses, and it provides women with the same rights as men in marriage.

Mayelane v. Ngwenyama

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.

Mpando v. Mpando

The petitioner sought a dissolution of her marriage to the respondent on the grounds of cruelty and additionally sought custody of their four-year-old child. As the respondent had already admitted to beating the petitioner throughout the course of their marriage and pleaded guilty to domestic violence in a lower court, the court ordered that the couples’ marriage be dissolved.

Negulu v. Serugga

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.

Nkabane v. Nkabane

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.

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