Traditional marriage and property rights

Last  year over 1000 couples were divorced and the numbers are increasing. One obvious reason is that we have become a larger, highly mobile and more active population. We have adopted an approach to life that is both individualistic and daring. It is a response to the pressures and challenges of modern day living. For whilst statistics on divorce rise, so do the number of unmarried mothers, and the number of remarriages.

Traditionally marriage was perceived as a relationship that made a woman a possession not only of her husband but that of the entire clan. This kind of ownership was not driven by selfish motives, but was used to foster family unity and a bond that would permanently ensure that children raised by the married people would have a sense of belonging. Family pride and unity seemed to take precedence, and if a woman was widowed/separated early in life, the family of the man would ensure that she was cared for and supported by the extended family.

If the woman continued to have children, those children would be adopted and accepted without prejudice as children of the dead man.

Nowadays our society suffers from what I call veiled witchcraft. Increasing absence of love and compassion is a form of witchcraft that will slowly destroy the very fabric of society.

Let me take you to this week’s customary court scenario to reveal how selfish thinking can produce pain and throw unsuspecting individuals into turmoil.

THE CASE STUDY

The complainant was Pasi, a young assertive individual. She was intent on registering a case against her stepfather Galani.

Pasi’s complaint was that her stepdad should come to court and show reason why he should not be ordered to surrender all property belonging to their late mother to her children.

The details of the case were that Pasi’s late mother Luba was married to their late father Dombo in community of property. Pasi told the court that her father died and left a Shaa plot on which the house they called home was built.

Their late father also left a cattle post with 50 head of cattle, a rifl e and an old car that he had operated as a taxi.

Upon his death, their mother Luba inherited all of their father’s things and the children were at peace until Galani met with their mother two years after their father’s death. Galani married Luba in a customary marriage through patlo and lobola.
Pasi told the court she had politely asked her mother to consult their late father’s relatives about her remarriage, but had been reprimanded by both Luba and Galani who told her that she had no manners.

Galani then moved in to stay with Luba and her children. A decision that was completely unacceptable to Luba’s children.

As fate would have it Luba got sick three years after remarrying, and died leaving behind a toddler that was fathered by Galani.

After Luba’s funeral, the family members tried to convene a meeting that would suggest a date for (galidema or phatlalatso). This meeting was unproductive as there were now three families involved and naturally Galani seemed to have a stronger voice because he was now the chief mourner.

Dombo’s family was also there because traditionally they regarded Luba as their wife and her children as their kith and kin whose interests they were culturally obliged to protect.

Pasi told the court that she decided to report the matter because Galani had announced that he would like them to move to a smaller house he owned so that he could rent out their house to generate income to support the family.

Pasi was adamant that Galani’s marriage to their mother should not give him the right to inherit anything at all. Her sisters and brother supported her case, and did not want their stepfather to be involved with their lives in any way at all.

GALANI’S DEFENCE

Galani asserted that he married Luba in community of property and therefore with her death he had a cultural right not only to inherit, but also to be the caretaker of her children. He even reminded the children that just before Luba died, she requested him not to abandon the children. He declared before court that he was the father of the youngest child and therefore the children could not be separated.

He spoke of his wish to ensure that his other children and Luba’s children would become one big happy family.

Pasi was in the company of her late father’ s relatives who took turns to cross-examine Galani.

The thrust of their questioning was to draw his attention to the fact that tradition gave them a never-ending role as protectors of Dombo’s children. One of the uncles further confused the issue by accusing Galani of marrying without even consulting them.

 

WHAT WOULD YOU DO IF YOU WERE THE JUDGE?

Pasi strongly believed that they should inherit all that their mother left behind.

Pasi had done her homework with the support of Dombo’s family who were well versed in customary law and die-hard traditionalists.

Pasi knew that her late mother and Galani had married customarily, and that their marriage was out of community of property.

On the other hand Galani believed that as he was recognized as Luba’s new husband, this entitled him to inherit from the wife.

Galani believed that if he did not inherit from Luba’s estate he would claim his lobola from Luba’s parents, who were now torn between Pasi and Galani.

THE JUDGEMENT

It appeared to me that natural justice dictated that Luba’s children should be the beneficiaries of her estate. Galani was ordered to stop rebranding Luba’s cattle and to surrender the rifle he had started carrying in his car when he went to the cattle post. The court ordered that the children of the first marriage should not be sacrificed because of their mother’s new romance.

Amongst the lessons to be learnt from this case is the mistaken assumption that customary marriage is in community of property. Customary marriage cannot be in community of property as there is no instrument signed to that effect and because it is potentially polygamous.

It would also assist individuals wishing to remarry to consider their children’s views and feelings. While as individuals we have acquired a powerful sense of self, we must not fail to objectively assess how our personal choices may hurt innocent survivors.

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tamu

this man should just leave the kid with their father and mother’s property , if at all he did not build the house why ague with the kids , just let them do what is in their mind , mr you were very unfortunate that the lady died before you, yes you had got a good jackpot but no , this man is wrong , just let the kids enjoy their biological parents’s investment , if there is little that the man brought to the family , your job was to buy food for them to grow up , then… Read more »