DIVORCE REMAINS TOUGH FOR TEKAED WOMEN

MBABANE – Women married under Swazi Law and custom will continue to find it harder to get out of their unions when compared to those married under civil rites.

This is because the proposed Marriage Bill of 2017 still states that for an annulment of a customary marriage, the courts shall have to regard the applicable Swazi law and custom dissolution of a customary marriage.
This route is more complicated than that of the civil rites marriage because Section 46 (1), which speaks on dissolution of marriage, puts it clear that a marriage in the case of a civil one, a court could issue a decree of divorce on the ground of the irretrievable breakdown of a marriage, among other reasons.

However, Section 46 1(b) states that in the case of a customary marriage, a court order of an annulment of a customary marriage shall have regard to the Swazi law; while the proposed law states that the irretrievable breakdown of the marriage can be the sole ground of divorce for those who are married under civil rites as they can simply produce evidence of adultery, sexual perversion, cruelty whether mental or physical on the part of the petitioner, desertion or a change in religion by the respondent. This, if the Bill passes as is, cannot be simply applied to customary marriages where the courts are expected to ensure that certain steps are followed in the traditional way.

The Bill, which will be piloted by the Ministry of Justice and Constitutional Affairs, has been made to replace the Marriage Act of 1964. Traditionally, if a man or woman wants out of a customary marriage they are expected to take certain steps, the first; which is in the case of the woman, she and her family are supposed to go to the man’s family which is normally called being phansi kwesihlahla (being under the tree).
After visiting the man’s family they are then expected to go and report the matter to the traditional authority (umphakatsi) of that area who also listens to the grounds of why each individual wants out. If the umphakatsi is convinced it then writes a letter which is forwarded to the District Commissioner to confirm that indeed the traditional authorities had given consent before that letter is submitted in court as evidence.  

              
“In the case of a customary marriage a court order of annulment subject to subsection 2 or the death of either spouse,” Section 46 (1) (b) reads.
Currently, in some instances under Swazi law and custom a bride can still have her bride price paid even after the death of her husband. However, the proposed Bill states that the marriage can now be dissolved at the death of either spouse.
The Bill is yet to go through all the relevant structures, which includes Cabinet, Parliament and all other stakeholders that would want to have a say in the matter particularly traditionalists.

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