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.
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.