High Court of Eswatini declares marital power unconstitutional
Sacolo and Another v Sacolo and Others [2019] SZHC 166
Date of judgment: 30 August 2019
Court: High Court of Eswatini
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Relevance of the case
In this matter, the High Court of Eswatini (the High Court) declared the common law doctrine of marital power to be unconstitutional. The doctrine is defined as “the right of the husband to rule over and defend the person of his wife, and to administer her goods in such a way as to dispose of them at his own will, or at any rate to prevent his wife dealing with them except with his knowledge and consent”.
Factual background
The applicant and respondent are husband and wife. A dispute arose regarding the legal regime of their marriage, specifically whether they were married in terms of civil law or customary law.
As part of this dispute, the applicant sought to have the doctrine of marital power declared unconstitutional. According to the applicant, the common law vests marital power in men, and accordingly violates the rights to equality, dignity and equal treatment before the law. In this regard, it gave men a more important status than women in respect of the assets of the marital estate.
Ruling of the High Court
The High Court noted that “[t]o a larger extent the marital power of the husband is alive and well in this country, pervasive in its discriminatory shackles”. Although marital power could be restricted contractually, the High Court accepted the applicant’s argument that wives should not have to go through the burden of an additional legal step, just to preserve their constitutional right to equality, especially since husbands do not have to take this step to preserve their rights. Accordingly, the High Court declared the common law doctrine of marital power to be unconstitutional on the basis of it being discriminatory against married women.
The full judgment is accessible (via SwaziLII) here.
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