|December 21, 2005
Landmark judgment for women in customary marriages
A precedent setting ruling earlier this month by a local court in Zambia has given women married under customary law the right to a share of marital property in the event of a divorce or death of the husband. Previously, a woman married under customary law would not be entitled to a share of property, irrespective of whether she had contributed to its acquisition.
Zambia has a dual legal system, and although statutory law takes precedence over customary law, the fact that many people live in rural and traditional settings has given customary law primacy in large parts of the country.
The subordination of women and the indulgence of men has been a feature of marriage under customary law, which stipulates that marriage is a union of a man who may or may not already be married and a woman who must be unmarried at the time of entering into matrimony. In the event of a divorce, most tribes do not recognise a woman's right to a share of marital property - she gets whatever her ex-husband or his family decides she can have.
Local courts have to be guided by the traditions and customs of Zambia's seven main tribes, but because the practices and procedures remain unwritten and subjective, magistrates often use their own judgment when deciding such cases. The situation was exacerbated in towns, where magistrates have had to deal with several customs or tribes simultaneously. "The magistrates find it difficult to make decisions because of the societal influences, which are mixed with some tribal customs. It is only in the villages and rural areas where one tribe dominates that local courts are able to adjudicate properly using local customs," observed Matrine Chuulu, coordinator of the NGO, Women and Law in Southern Africa (WILSA).
In customary or traditional marriages families agree on a bride price (lobola), and a verbal agreement witnessed by relatives from both families is made. The couple do not sign any legal document to prove that they are married. It is precisely for this reason that men prefer customary unions, said lawyer Manfred Chibanda. "All my friends and even my family and mother are married by tradition, because 'I do not want my wife to get anything of mine, if she leaves my house then she goes the way she came' - it's a way of protecting ourselves," he explained. On the other hand, lawyer Margret Chinyama said, the recent judgment "fixes" men with views like Chibanda.