The History of the Creation of the Customary Law of Marriage and Divorce in the Natal Colony, Zululand and Kwazulu from 1869 to 1985
Author Mothokoa Mamashela
Affiliations: Research fellow, UKZN
Source: Fundamina, Volume 27 Issue 2, p. 1-38
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.