SUPREME COURT: MARRIAGE VOWS NOW MEANINGLESS

MBABANE – Marriage is becoming more and more of a commercial and contractual project.

This was according to the Supreme Court, when it decided a divorce appeal in which adultery was cited as a ground. The court also stated that marriage vows have become meaningless.
The sanctity of marriage, according to the court, as times change, has been dealt a blow also by the legalisation of same-sex marriages. In the matter before the court, the husband was seeking divorce on grounds of adultery and, alternatively, malicious desertion. Victor Tesa wanted the court to order that his wife, Anita, should forfeit all benefits deriving from the marriage contracted in community of property.

He also wanted movable property donated by his wife’s family to the joint estate returned. The wife had taken the movable property to set home for their children and herself, when she deserted him, the court heard. Victor further prayed for a return of her share of E1 million, which was her half share when they sold a house in South Africa of the joint estate. Appellant also wanted custody of the children. Judge Sabelo Matsebula heard the matter, together with Judge Stanley Maphalala and Judge Nkululeko Hlophe. In the unanimous judgment, the court found that there was no misdirection from the High Court and that both parents should enjoy custody and love of their children and maintain them in accordance with their incomes.
Victor’s appeal partially succeeded and the order of the High Court of malicious desertion was changed to divorce on the ground of adultery. The Supreme Court also ordered that the joint estate should be divided equally between the parties. Anita forfeited 20 per cent of her financial interest accruing by virtue of the marriage being in community of property.

Appealed

This means that Victor shall receive, in total, 70 per cent and Anita the remaining 30 per cent. The order being appealed was issued by Acting Judge Thami Dlamini, who found in favour of Victor and approached the Supreme Court, because he was not satisfied with the judgment. In the introduction of the judgment, Judge Matsebula said in the history of Eswatini, both under the Roman-Dutch common law and under the Eswatini Law and Custom, the law and culture of marriage and adultery is a concept well-known and accepted. He said what is unknown, under Eswatini Law and Custom, is divorce, the division of property and forfeiture of property following a breakdown of a marriage. The judge stated that in Eswatini culture and Eswatini Law and Custom, certain aspects of marriage exist and remain beyond the life of the marriage and the life of the parties.  The reason, according to Judge Matsebula, is that the bride does not marry the groom, but marries to the groom’s family.

Division

Judge Matsebula further said the division of property and forfeiture is a foreign concept introduced by Roman-Dutch common law. “Marriage as recognised by the Roman-Dutch law has its genesis or roots from Jewish and Christian religions, holding that marriage as holy union between man and woman and ordained by God Himself, who also outlawed as sin infidelity or adultery. “It is not clear what happened to a man caught in adultery, but very clear that a woman caught in adultery was put to death, normally by stoning (capital punishment). Then, that was the sanctity of marriage,” reads the judgment.

“With times changing and forever changing, it was viewed as cruel, inhumane and barbaric to mete capital punishment on adultery. Capital punishment was substituted with forfeiture by the adulterer of some of the property of the joint estate.” The aspect of forfeiture, according to the judgment, accords and embraces the principle of sanctity or holiness of marriage, yet divorce itself offends the decree that, ‘those whom God had joined together let no man put asunder’.

Adultery

Under the sanctity principle, an innocent party could sue for damages any person who committed adultery with one’s spouse. But times keep changing. In Eswatini, as well as in South Africa, the recent court decisions maintain that the innocent party can no longer sue a person who commits adultery with one’s spouse for damages. The sanctity of marriage principle has further been eroded. Judge Matsebula stated that the sanctity of marriage principle, with the changing times, has been dealt a further blow by most Western and, to a lesser extent, Eastern countries and next to zero African countries by passage of legislation legalising same-sex marriages.

He further stated that the argument that a marriage is a holy union between a man and a woman is becoming difficult to support and instead, marriage is becoming more and more of a contractual project in nature. “Under this contract, the grounds that can be advanced for termination of the contract known as divorce, are many under the umbrella of irretrievable breakdown of marriage.  “Any conceivable thought could be a ground for divorce; it could be emotional, economic, financial, lack of respect for the other party and the traditional grounds of adultery and desertion. “The marriage vows have become meaningless. The marriage contract has become akin to a commercial contract, hence it should be treated so. Damages, where they are due, must be proved,” further reads the judgment.

Forfeitures

The court went on to say forfeiture should not be automatic after a finding of adultery. This, said the court, will allow full and partial forfeitures. The court further said the degree of fault or misconduct should be determined by the court. When the matter was argued in the High Court, the helper in the house of Victor’s friend, told the court that her employer, Henning, even shared a bath with Victor’s wife when their spirits allowed. “It could be innocent, maybe in some hippie community, but not in our society, where to take a bath with a married woman who is not married to you but to another man, is totally unacceptable, outrageous and immoral and has in many instances resulted in deaths.

“The fact that the two men knew each other and were friends does not break the ice. What courage did Henning have to be in a bathroom with a naked married woman of his neighbour and friend?” reads the judgment. This, the judge said, is totally unacceptable for what Henning did with his friend’s wife and in any society, ‘same as ours, it is bound to draw conclusions of infidelity and adultery’.

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