Abstract

This contribution discusses the creation of an official, colonial version  of the customary law of marriage and divorce in the Natal colony and  Zululand by the colonial administration. Traditional African institutions,  hereditary traditional leaders and their courts were replaced with  magistrates and British officials at public and administrative levels.  Customary law was codified, thus robbing it of its diversity, flexibility  and dynamism.  In traditional customary law a marriage was constituted in several  ways: arranged, forced, woman to woman, sororate and levirate  marriages occurred. However, the Natal colonial administration prohibited  these types of marriages, viewing them as repugnant to the  administration’s sense of morality and justice. A customary marriage  was also family-centred and processual; it united two families and not  only two individuals, and it took a long time to come into existence.  This characteristic of a customary marriage was also drastically  changed by the Natal colonial administration by removing it from the  purview/control of the family to the individuals themselves in that the  bride and groom were encouraged to choose their partners and to give  their consent freely to their own marriage. Marriage and divorce were  individualised and the couple’s families were gradually left out.  The principle regarding irretrievable breakdown of a marriage was  replaced with the guilt principle. In addition, five common-law grounds  for divorce were introduced into the customary law of divorce, and the  inquisitorial procedure was replaced with the adversarial one.  Patriarchy, one of the tenets of customary law, was diminished  through legislation that whittled down the excessive powers that fathers  had over their children. The legislation sought to endow women and  children with basic human rights and the gradual recognition of their  property rights. Colonial administrative changes meant that polygyny  and ilobolo were discouraged; that marrying more than one wife was  seen as enslavement of women; and that the transfer of ilobolo was  misinterpreted as the selling of women.