High Court
of
Malawi
September 11, 1970
(Synopsis: Claim to be validly married must be
supported by evidence of established formalities--Meeting of
"advocates" an essential formality--Although no marriage existed,
appellant to make payment to respondent to start a new life and to make monthly
payment for children born of the association.)
Note: The cases below, both decided by Chatsika,
J., beg the question whether Malawi now ought to recognize that there is a new
customary law for such urban communities as those of Blantyre, Zomba and
Lilongwe. The parties just meet and
purport to get married. In neither case
is there an nkhoswe (marriage guardian).
They might live together for years; they might have several
children. They invariably quarrel, and
as there is no nkhoswe no attempt is made to reconcile them.
According to some of the Traditional Courts, there is a marriage
analogous to common law marriage by reputation. In the Cewa tradition, the Court might even suggest that the man
is stopped from denying the existence of the marriage. The children are said to be the
nkhoswe. In some of the Southern
Regional Traditional Courts, this view is hotly rejected. The term of years or the number of children
do not matter: if there is no nkhoswe, there cannot be any marriage. In Kasupe District this has been constantly
held to be the case. Chatsika, J.,
supports the latter view and in the second case below actually
"reluctantly" rejects the opinion of two assessors who held the
opposite view. Strangely enough he
holds in the first case that there is a union which in equity cannot be
ignored. The effect of this is that it
entitles the woman to 15 pounds to "enable her to start a new
life." In the second case, this is
specifically stated to be for the purpose of building a house for her at her
own home.
The
Malawi Congress Party Convention debated the issue of marriages at Lilongwe in
1971, but merely concluded that marriage customs which retard progress must be
"discouraged." The Life
President has made it clear that it would be a waste of time to enact new
marriage laws, but advocated that the patrilocal and matrilocal systems should
learn from each other. The Convention
did not seem to be baffled by urban systems.
A copy of Mr. Justice Chatsika's judgment was submitted to the Minister
who led the issue at the Convention.
It
is submitted that a new approach is called for to resolve the legal problem:
when is a marriage not a marriage? Some
case law already exists on the question.
(footnote omitted)
Chatsika's decisions were among the last appeals heard by the High Court
from the Traditional Courts. No appeals
are brought from the Traditional Courts to the High court any more. (footnote omitted) The decisions are controversial.
In the first place the issue never seems to have been divorce. The petitioners seem to have been concerned
with maintenance. It is suggested in
Malawi that this may not have been available at customary law. In the first case the appellant had
specifically counterclaimed that the woman was herself guilty of
desertion. In both cases custody of the
children is given to the mother. The
law for even matrilocal situations, it is submitted, now recognizes the rights
of the father over the children.
Chatsika, J., states in line with well-known authority that the father
has a moral duty to educate the children.
We submit that this duty has now developed into a legal one.
What
we suggest here is that there is need for revised thinking in relation to urban
communities where the factors operating in traditional society no longer
reign. This revised thinking might have
to emanate from the Courts themselves now that the legislators apparently do
not consider it necessary to step in.
Louis Chimango
Judgment by Chatsika, J. This is an appeal against the judgment of
the Blantyre Traditional Court which was upheld by the Blantyre Traditional
Court of Appeal ordering the appellant to pay to the respondent the sum of 30
pounds as compensation on the dissolution of their marriage. Both the trial court and the court of appeal
proceeded with the case on the assumption that the appellant and the respondent
were married, and the courts purported to dissolve that marriage. No evidence was led to prove the existence
of a valid marriage and it does not appear that either court gave any
consideration to the vital question of whether or not there was a valid marriage
between the two parties. In matrimonial
cases, especially those concerning dissolution of a marriage, the first
consideration by a court must be to establish the existence of a marriage. It is common sense that the court cannot
dissolve a marriage that does not exist.
Coming now to the present case, the record from the two courts below and
the additional evidence which was given in this court, reveals that the
appellant and the respondent met in Blantyre in September 1964, when the
respondent, who had just arrived from South Africa, was working as a Nanny at
Nyambadwe in Blantyre. The appellant
was working as a bus driver with the United Transport (Malawi) Ltd., also in
Blantyre. the appellant proposed marriage
to the respondent, and the respondent, having accepted the proposal, went to
live with the appellant at Mount Pleasant, Blantyre. The parties, however, never went through a formal ceremony of
marriage but continued to live together as man and wife for a period of six
years. During that period, from 1964 to
end of 1969, four children were born, the first of which died. The parties' association was not entirely a
happy one. It is in evidence that after
the birth of the third child the appellant began to treat the respondent with
cruelty and disrespect, saying that she had no home and no relatives and was
fully dependent upon him. The result
was endless quarrels which culminated, in December 1969, by the appellant
asking the respondent to leave his house.
There is evidence also from the records of the courts below that during this
time the appellant had another woman somewhere with whom he used to live as man
and wife. Whether or not he was married
to that other woman is irrelevant for the purposes of this proceeding.
On
the thirteenth December, 1969, the appellant forcibly asked the respondent to
leave his house and the respondent then went to live with her brother who lived
nearby. The appellant occasionally
visited the respondent at irregular intervals but after a short time he stopped
seeing her altogether.
In March
1970, the respondent issued a summons against the appellant in the Blantyre
Traditional Court alleging that she was not getting support from the appellant
both for herself and for the three surviving children.
. . . The respondent gave evidence to the effect
that she was "married" to the appellant in 1964 and that in December
1969, he forcibly asked her to leave his house. She went on to say that since then she had been living with her
brother and was not getting any support from appellant for herself and for the
three surviving children. In reply the
appellant said the respondent deserted him and continued to say that he did not
want her to come back to his house any more.
Assuming that there was a marriage in existence, the court purported to
dissolve that "marriage" and ordered the appellant to pay thirty
pounds compensation to the respondent.
The appellant appealed to the Blantyre Traditional Court of Appeals, and
this court, also acting on the presumption that there was a marriage in existence,
endorsed the judgment of the court below and added that the appellant should
share certain household items with the respondent.
The
appellant, still being dissatisfied with the decision of the appellate court,
now appeals to this court. In his
petition of appeal he makes two points which will be the ratio decidendi of my
judgement. In his first ground of
appeal he states that he ought not to be ordered to pay compensation to the
respondent because it was the respondent who deserted him. The other ground of appeal is to the effect
that he ought not to be ordered to pay compensation to the respondent because
there were no advocates to their marriage.
"Marriage" here is being used in a very loose sense because
what the appellant is trying to say in this ground of appeal is that the
absence of advocates is an indication that there was no marriage in
existence. I shall, therefore, try to
deal with the question of whether or not there was a marriage in existence. In deciding this point, apart from social or
human considerations, principle alone demands that in order to establish the
existence of a valid marriage the union or association of the man and woman who
claim to be married must be supported by certain established formalities which
are governed by the accepted customs and practices of the community from which
the parties come.
Having now come to this conclusion, it follows that I must set aside the
order of the Blantyre Traditional Court of Appeal dissolving the
"marriage" between the appellant to pay the sum of thirty pounds
compensation to the respondent. This,
in my view, is consistent with common sense since the court could not have
dissolved a marriage that never existed.
Although I have found that there was no marriage in existence, the fact
that the parties lived together as man and wife for six years and had children
born to them during that time must be given very careful consideration. It is a doctrine of Equity that we must look
on that as done which ought to have been done.
The appellant and the respondent during the period of their association
must have treated each other as man and wife.
Indeed, in the eyes of the public the respondent was treated as a
"married woman" and a single man could not have approached her with a
proposal for marriage with free conscience.
Her chances, therefore, of entering into a lawful marriage with another
party during the period of her association with the appellant were reduced down
to the very minimum. She used to
perform all the services that were expected of a wife. The courts would have failed to protect the
community were they to deny consideration to a situation such as the present
one. The Assessors have advised me also
that the respondent, although not formally married to the appellant, ought to
be granted some relief at the end of the association, and I respectfully agree
with their advice. The appellant has
emphatically indicated his unwillingness to continue to live with the respondent
adding that he does not love her any more.
The judgment of this court, therefore, is that the appellant will pay
the sum of fifteen pounds to the respondent to enable her to start a new life.
Journal of African Law
vol. 16 no. 2 (1970)