Both customary law and Roman-Dutch common law govern marriage and family law in Swaziland, at times resulting in contradictory provisions.[4] Women hold minority status and widows are particularly vulnerable under customary laws.[5] According to the 2005 Swaziland constitution, customary practices are permitted unless they conflict with constitution clauses.[6] In addition, Section 28(3) provides that women shall not be compelled to undergo or uphold a custom to which she is in conscience opposed. In practice, however, many women are unaware of this legislation and remain subject to customary laws.[7]
Two types of marriage exist in Swaziland: marriage in accordance with customary rites and those in accordance with civil rites.
[8] The latter is governed by the Marriage Act of 1964, which places
minimum age of marriage at 21 for both males and females. In addition, the Constitution (Section 27) provides that marriage may be entered into only with the free and full consent of the intending spouses.
[9] However, with parental consent (or that of a legal guardian), a female can marry at the age of 16 and a male at the age of 18.
[10] The recent Children’s Protection and Welfare Act of 2012 bans sexual activity with underage females and penalizes parents who arrange early marriages with prison sentences of up to 20 years.
[11]A draft version of the Sexual Offences and Domestic Violence Act also criminalises early and arranged marriages. While the bill was recently enacted into law in late 2013, the text of the latter is not available and as such details of the enacted Bill’s provisions are not accessible. Early drafts of the Bill also criminalize levirate (
kungenwa) and sororate (
kuhlanta) unions, as well as virginity testing,
[12] but again, the text of the newly enacted Bill is not currently available. The payment of
lobolo (also known as bride wealth or dowry) has not, however, been criminalized, and generally women are considered the property of her husband and in-laws.
[13] Lobolo is customarily paid by the groom or father of the groom (traditionally in the form of cattle and other valuables) to the father of the bride, and is viewed not so much as the purchase of the woman per se, but rather for the promise of future children and to compensate the family of the bride for the loss of their daughter.
[14]While the Birth, Marriage, and Death Act (1983) provides for the registration of both civil and customary marriages, there is no provision enforcing the registration of the latter.
[15] Customary marriages can also be entered into without the full consent of the partners. For example, in some communities it is deemed consent to marriage if a woman visits her boyfriend three times.
[16] Husbands have broad powers in marriage, and control much of women’s everyday lives, from whether they may work outside the home, to what they can wear. In customary law in particular, the wife is functionally equivalent to a minor.
[17]It is reported that there is no minimum marriageable age for customary marriages where males and females are considered ready to marry upon reaching puberty.
[18] Early marriage in Swaziland is not, however, as common compared to other African countries. According 2007 UN data, 6.9% of girls between 15 and 19 years of age were married, divorced or widowed, compared to 1.8% of boys in the same age range.
[19] The 2010 Multiple Indicator Cluster Survey (MICS4) reports that among women ages 15-49, 2.3% were married before the age 15 and 10.9% before the age of 18. At the time of the survey, 4.3% of women age 15-19 were currently married or in a union.
[20]According to the 2006-2007 DHS, the adolescent fertility rate was 111 births per 1,000 girls age 15-19.
[21] The 2010 MICS4 reports a slightly slower adolescent fertility rate of 89.
[22]The constitution (Section 29 (3)) states that “
The child has the right to be properly cared for and brought up by parents or other lawful authority in place of parents.”
[23] In practice, however, fathers and mothers in Swaziland do not enjoy equal
parental authority. Guardianship is primarily vested in the father of the child. Where the marriage has ended in
divorce the mother is often granted custody only, with guardianship remaining with the father.
[24]When it comes to decision-making, women primarily decide how to use their cash earnings (65.1%)
[25] as well as make choices concerning the purchase of daily household needs (56.5%).
[26] Decisions over major household purchases are commonly made either jointly by the husband and wife (42.2%) or by the husband alone (35.4%).
[27]Concerning
inheritance, section 34 of the Constitution provides that a surviving spouse is entitled to a reasonable provision out of the estate of the other spouse independent of whether the spouse died having made a valid will or not and whether the spouses married by civil or customary rites.
[28] Despite this legal protection, the Centre for Housing Rights and Evictions reports that ‘property grabbing’ from widows is common, citing a study that found that 41% of widows had their property unlawfully seized by in-laws.
[29] Further, widows are often forced to marry another male in their deceased husband’s family, which results in the loss of the guardianship of their children and any rights to their husband’s immovable property.
[30] The United Nations Swaziland office reports that girls cannot inherit property from their parents.
[31]More
Women and men may equally
initiate divorce under Roman-Dutch common law on the grounds one of two “fault” principles: adultery or desertion.
[32] Common law does not provide for divorce based on neglect, cruelty or violence, making it difficult to obtain a divorce from an abusive spouse who wishes to stay married.
[33] Under customary law divorce is difficult, if not impossible for women to obtain and even informal methods of divorce are rare.
[34] Whether the marriage is civil or customary, upon divorce women tend to lose most, if not all, of the property she contributed during marriage, and under customary law, the woman’s family is required to return the bride wealth.
[35] In addition, under customary law, women own only clothing, household items and the like, but never homes, land or other valuable property. Husbands also have the unilateral right to dispose of property, and may choose to do so before a divorce such that there is nothing left to distribute.
[36] There is no separate court for family law issues, nor any information with regards to plans to establish such a court.
[37]Polygamy is not recognised under civil law in Swaziland, however customary law allows men to take an unlimited number of wives
[38] and the King himself has 15 wives. Data from the 2006-07 Demographic Health Survey indicates that 15.7% of currently married women are in a marriage with one or more co-wives
[39], while the 2010 MICS4 reports that 13.1% of women 15-49 are in a polygamous union.
[40] Based on the data, polygamy is more common in rural areas compared to urban areas.
[41]
[4] CEDAW (2012), p.90; Gender Links (2012), p.6 [5] Gender Links (2012), p.6 [6] CEDAW (2012), p.11; Gender Links (2012), p.19 [7] Idem [8] CEDAW (2012), p.86 [9] Idem, p.90 [10] Idem, p.90 [11] Idem, p.19 [12] Gender Links (2012), p.14 [13] Idem, p.14 [14] Impowr (2013)[15] Idem, p.6 [16] Idem, p.17 [17] Foster (2013), p.1174 [18] Gender Links (2012), p.6 [19] DHS (2006-2007), p.83 [20] MICS4 (2010), p.165 [21] DHS (2006-2007), p.49 [22] MICS4 (2010), p.99 [23] CEDAW (2012), p.38 [24] Gender Links (2012) p.17 [25] DHS (2006-2007) p.245 [26] Idem, p.248 [27] Idem [28] CEDAW (2012) p.91; Gender Links (2012) p.18 [29] Gender Links (2012) p.20 [30] Gender Links (2012) p.18 [31] United Nations Swaziland (n.d.); Gender Links (2012) p.18 [32] CEDAW (2012) p.91; Foster (2013) p.1174 [33] Foster (2013) p.1174 [34] Idem, p.1174 [35] Idem, pp.1174-1175 [36] Idem, p.1174 [37] Gender Links (2012) p.16 [38] Foster (2013) p.1174 [39] DHS (2006-2007) p.85 [40] MICS4 (2010) p.165 [41] DHS (2006-2007) p.85; MICS4 (2010) p.165
