CH 9 Dissolution of Marriage Flashcards
Marriage
1) Acustomary marriage is a union of two families
2) The marriage binds both the living and the dead
3) Belief in the indissoluble nature of customary marriages
4) Marriage binds the two families for life
Dissolution by divorce
1) Divorce was a private matter between two families
2) Traditional courts only utilised in difficult matters
3) Regulated by s 8 of the RCMA
4) s 8(1) of the RCMA, divorce can only be granted on one ground
5) Namely, irretrievable breakdown of the marriage
S 8(2) defines irretrievably broken-down as:
1) Marriage relationship between the two parties has
2) reached such a state of disintegration that
3) there is no reasonable prospect of the restoration of a normal marriage relationship between them
Commonfactors resulting in an irretrievable breakdown are:
Adultery; Witchcraft; Infertility and Desertion
Adultery
1) Different communities hold differing views on adultery
2) Adultery may only lead to a sanction by the husband
3) The form of sanction might include paying a fine
4) May lead to divorce if is persistent or incestuous
Witchcraft
1) Accusations of witchcraft are a serious matter
2) A spirit medium is usually used
3) Persistent accusations may also lead to an irretrievable breakdown
Infertility
1) Infertility does not always lead to a divorce
2) It can be remedied through the custom of sororate
3) Sororate can also be referred to as inhlanti or seantlo
4) The wife’s younger sister or half-sister steps into her shoes for
purposes of giving birth
Desertion
1) Desertion does not always lead to divorce
2) Must be accompanied with an intention not to return to the marriage
This custom is known as theleka (ukutheleka)
1) Wife may leave with the intention of returning to the marriage
2) This is done to initiate family discussions to improve her marriage
3) May be used to enforce payment lobolo
4) Husband must exercise his phuthuma duty to fetch his family
Consequence of divorce of lobolo
1) After dissolution lobolo may be returned to the husband’s family
2) Wife’s guardian may retain a portion of the lobolo
Amount retained is determined by
1) Whether the wife has borne children,
2) Whether any fault can be attributed to either of the spouses
3) Wife’s performance of services in her matrimonial home
Dissolution by death
1) Marriage is not a union between the spouses individually
2) It is a union between the families of the spouses
3) Death does not always lead to the dissolution of the marriage
4) After the death, the family council determines the future of the marriage
5) Marriage might continue to exist through the custom of ukungena
Ukungena
1) Man’s widow cohabits with one of his brothers
2) Male relative is regarded as an ukungena consort
3) The nominated relative ‘steps into the shoes of the deceased’
4) Purpose of ukungena is to raise an heir
5) Continuation of family bloodline is a significant determining factor
6) Children borne between the widow and the ukungena consort are
regarded as children of the deceased
A number of factors are put into consideration before a family can
invoke the ukungena practice:
1) Consent of the widow
2) Age of the widow
3) Whether the widow has offspring
4) Relationship between the deceased’s family and the widow
Ukungena prerequisite
1) Consent of the widow is important
2) The widow is never compelled
3) Consent is required for her participation and identity of the consort
4) Widow may refuse but continue to be part of the deceased’s family
5) Death of a wife may lead to seantlo/sororate custom
