CHAPTER 8 DISSOLUTION OF MARRIAGE Flashcards
- Fully describe the custom of ukungena and its purpose. (4)
Under customary law, death does not necessarily result in the dissolution of a
marriage. This is because customary marriages are a union between two
kinship groups. In the instance of the death of a husband, the widow of the deceased may be requested to cohabit with one of the deceased’s brothers or other nominated male relative, namely, an ukungena consort. (1) The ukungena consort will be regarded as having stepped into the shoes of the deceased. (1)
The purpose of this practice is to raise an heir in order to continue the family bloodline (1). Children from this union are regarded as children of the deceased.
(1)
- Naruto and Sakura were customarily married of 19 March 2020. Their
honeymoon was cut short after the President announced an alert level 5
due to the increase in covid-19 cases. In order to not be trapped in
KwaZulu Natal, the couple rushed back to Limpopo before the curfew but
got involved in an accident which saw Naruto pass away. While still
mourning the death of her husband, Sakura was forced to enter into a
union with her deceased husband’s brother, Sasuke, as there were no
children from her marriage. She made numerous attempts to refuse to be
a part of the union but all attempts were unsuccessful. Critically discuss
whether the union between Sakura and Sasuke was validly concluded?
Give reasons for your answer? (4)
For the valid conclusion of the practice of ukungena, the widow’s consent in the
participation and the identity of the ukungena consort is required. (1) The widow
can never be compelled to participate in ukungena. (1) The widow may refuse
to participate in the practice but continue to be part of the deceased’s family. In
the present case, Sakura was forced to enter into the union with her deceased
husband’s brother, Sasuke. Sakura did not consent to this union, she was
compelled. (1) Therefore, the custom was not validly concluded. (1
- Ntokozo customarily married his high school sweetheart, Mazet, and they
have been in a loving relationship for 10 years. After several years of
trying to conceive, a visit to the doctor exposes that Mazet is infertile.
Ntokozo is under pressure from his uncles Langa and Teddy to divorce
Mazet and marry Goodness in order to have an heir to take over the family
business. The couple decides to live with Buhle, Mazet’s supportive
younger sister, to avoid the constant pressure from his uncles. Ntokozo
does not want to divorce Mazet, but he understands his duty to produce
an heir to take over the family business. Advise Ntokozo on the options
available for him. (5)
The couple could practice the custom of Sororate (1). Soroate is a custom that
enables a marriage to continue when the wife is infertile (1) by allowing a
younger sister or half-sister of the wife to conclude a union with the husband.
(1) This custom is aimed at remedying the issue of infertility which can lead to
the irretrievable breakdown of a marriage. (1) In this instance, Buhle may step
into the shoes of Mazet by concluding a union with Ntokozo for purposes of
bearing an heir. (1)
- Since the commencement of the Recognition of Customary Marriages Act
120 of 1998, there has only been one ground for divorce for customary
marriages. Identify this ground and briefly discuss it. (3)
The ground is the irretrievable breakdown of the marriage (1). The ground is
defined in section 8(2) of the RCMA (1) as being when ‘the marriage
relationship between the two parties has reached such a state of disintegration
that there is no reasonable prospect of the restoration of a normal marriage
relationship between them’ (1).
- After a heated argument between Bill and Melinda, wo have been
customarily married for over 26 years, Bill decides to file for divorce as
he is of the opinion that their union has irretrievably broken down. He is
however concerned about the lobolo amount which he had fully paid to
the family head of his wife. He approaches you for legal assistance on
various matters which includes among others - whether he can
successfully claim for his lobolo amount. Fully advise him in this regard.
(4)
The family head may retain some of the lobolo based on the following criteria:
i. Whether the wife has borne children
Procreation is the main objective of a customary marriage and if the wife has
fulfilled this obligation to the married family, her guardian is entitled to retain
some lobolo. The amount in this regard varies. (1)
ii. Whether any fault can be attributed to either of the spouses
Where the break-up is primarily due to the fault of the wife, the guardian forfeits
the lobolo entirely. Where the husband is at fault, the guardian may retain some
of the lobolo. (1)
iii. Whether her performance of services in her married home should be
acknowledged
Lobolo may also be retained by the guardian in instances where the husband
abandoned his wife or was impotent. (1)
Therefore, Bill can claim the lobolo. The amount claimable will be dependent
on the facts of the case. (1)
- LeBron and Caster are high school sweethearts who are deeply in love.
After completing high school they decide to conclude a customary
marriage. Their families conclude lobolo negotiations on their behalf.
LeBron has strong liberal beliefs, and he decides not to fulfil his promise
to pay the agreed lobolo amount as he is of the opinion that the custom
of lobolo amounts to the sale of a female.
Two children, Elisa and Thabang were born out of the marriage. After
many failed attempts to claim the lobolo amount, LeBron eventually
discloses to Caster and her parents that he does not intend on fulfilling
his promise to pay the agreed lobolo amount. Enraged by this
information, Caster’s parents approach your law firm for assistance on
how they can force LeBron to fulfil his promise to pay the lobolo payment.
Fully advise them. (5
LeBron can be forced to make the lobolo payment according to the practice of
theleka (1). According to this practice, a wife will return to her parental home to
extract lobolo payments from her husband (1). The husband has a phuthuma
duty to fetch his wife who has return to her parental home. (1) When fetching
her, the reasons for her departure from the matrimonial home are discussed
(1). Payment of a beast for misbehaviour of the husband or payment of lobolo
instalments can resolve the matter amicably. (1)
- Assume LeBron, from question 7, did not fetch Caster and has since not
paid the outstanding lobolo amount. However, LeBron is made aware of
the fact that Thabang and Elisa are prominent Academic Associates in the
best law faculty in Africa and wishes to acquire custody of the children.
Advise Caster on the possible remedies available to her. (2)
Caster can invoke the custom of isondlo (1). According to this custom, Caster
can claim the payment in form of one or two beasts from LeBron as she raised
the children (1)
- In what ways is the dissolution of a customary marriage different from the
dissolution of a civil marriage? (3)
Sections 8(4)(a) and 8(4)(b) of the Recognition of Customary Marriages Act 120
of 1998 govern the consequences of a dissolution of customary marriage by
divorce (1). As a result, these consequences are now broadly the same as
those of a civil marriage (1). This is because section 8(4)(a) provides that a
court dissolving a customary marriage has the same powers as those found in
sections 7, 8, 9 and 10 of the Divorce Act and section 24(1) of the Matrimonial
Property Act (MPA) (1). These are the same powers at the disposal of a court
when dissolving a civil marriage.
