Assessing the Swaziland
High Court Judgment on marital power (Nombuyiselo Sihlongonyane v MholiSihlongonyane High Court Case No. 470/2013 A).
On
18 July 2013, the Swazi High Court passed a judgement declaring marital power
unconstitutional. The concept of marital power denies women married under civil
rites and in community of property the ability to sue and being sued in their
own name. Much as this judgment has been received with delight by lots of women
in Swaziland, the practical implications are depressing. This is due to the
fact that the discrimination of women in administering matrimonial property
continues to persist. The case which brought the matter to the fore involved a
husband and wife who got married under a civil rites marriage in community of
property with the husband retaining the power to administer the matrimonial possessions.
The wife made an application to the court to have her husband removed as
administrator of the joint property as a result of the husband’s alleged
mismanagement of the estate. The Constitutional question arose after the
husband challenged his wife’s capacity to institute legal proceedings without
his assistance. Consequently the High Court had to interrogate sections 20 and
28 (on equality and non-discrimination of women) of the Swaziland Constitution
and determine if the common law position of marital power still exist in light
of the constitutional dispensation. Under the common law, the property of
spouses falls into a common pool which, although jointly owned by the spouses,
is entirely controlled by the husband unless the spouses execute an ante-nuptial contract before marriage. This places the wife, in relation to the property of
the marriage, in almost the same position as a minor child except the fact that
guardianship of a minor serves the interests of the minor, whereas marital
power serves the interests of the husband. Marital power embraces three
elements, namely:
a)
The
husband’s power as head of the family by virtue of which he has the decisive
say in all matters concerning the common life of the spouses and determines,
inter alia where and in what lifestyle they are to live,
b)
The husband’s
power over the person of his wife, including her representation in legal
proceedings and
c)
The
husband’s power over the property of the wife which enables him, in his
absolute discretion, to deal with the joint estate as its administrator.
The
overall effect of the husband’s exercise of marital power is to subject the
wife to the husband’s guardianship, effectively making her subservient to her
husband. The court relying on the case
of The Attorney General v Mary Joyce DooAphane, Civil Appeal case 12/2010 held that marital power unlawfully and
arbitrarily subordinates the wife to the power of her husband and was an unfair
discrimination based on sex or gender inasmuch as it adversely affects women
who have contracted a civil rites marriage in community of property with no ante-nuptial contract. The court further
observed that, whilst it is accepted in common law that a married woman who is
subject to the marital power may approach the court for leave to sue without
the aid of her husband, such notion or concept is discriminatory of such women
in so far as it applies to such class of women and not men. “A married man does
not, under any circumstances, have to apply for such leave and therefore this common
law requirement constitutes an unfair discrimination”, the court noted.
Notwithstanding this observation, the court did not entirely abolish the common
law position of marital power. It confined itself to the issue of women’s
capacity to institute and defend legal proceedings without the assistance of their
husbands. Undoubtedly, the root cause of
the dispute in this case relates to the husband’s inability to exercise marital
power to administer the joint estate in good faith. In this case the Applicant
approached the court as a result of her husband’s maladministration of the
matrimonial property in the exercise of such marital power. Thus even if her husband
did not challenge her legal capacity, she would have still proceeded under
common law to prove that her husband had acted fraudulently in dealing with the
joint property to her loss as this will be the case in the main application
which will be held at a later stage. In other words, if marital power is
declared unconstitutional, the starting point in making a just and equitable inquiry would be for the court to place the wife
on an equal footing as her husband by pronouncing joint administration of the
matrimonial property. This therefore means that in order for this kind of
marriage to comply with the Constitution, the entire concept of marital power
must be abolished. For other women in the same position as the Applicant, their
emancipation only extends as far as their capacity to institute and defend
legal actions; however, their husbands retain their common law status of being sole
administrators of their matrimonial properties.
Recommendations
In
order for Swazi women to realize their rights as enshrined in the Constitution,
there needs to be a holistic review of the marriage laws in the country. A positive way to start would be amending all
marriage laws by passing a legislation that will effectively facilitate
equality of spouses in marriage. Similar legislation have been passed by
several countries in the region. For instance Botswana and Namibia abolished
marital power by enacting the Abolition of Marital Power Act of 2004 and the
Married Persons Equality Act of 1996 respectively, thereby giving equal power
to spouses to administer their joint property. In promoting equality and
non-discrimination of women as required by the Convention on the Elimination of
all forms of Discrimination Against Women (CEDAW) and other regional and
international obligations, Swaziland must take positive action to pass a law
that will put to an end the power of husbands to choose the domicile for their
wives just like South Africa did by passing the Domicile Act in 1992. There is
also a crucial need for Swazi civil society to collaborate with lawyers in
providing refresher courses and discussion forums that will enable them to
develop appropriate litigation strategies to ensure the meaningful realization
of the Bill of Rights.
