Ending domestic violence requires fixing our marriage and divorce laws

Kgosietsile Ngakaagae | Friday May 7, 2021 15:02

I was stunned by the overwhelming response. I consider that it is a subject worth revisiting. It is my hope, that it will provoke discussion on this all important subject, and that the powers that be, might be persuaded, to take a second look at our laws, and to reform some. 

Our marriage laws are archaic, and do not serve the interests of the parties involved, in particular, the couples themselves. Our marriage laws seem inclined to serve society, as opposed to the contracting parties. Marriage, just like divorce, is a very personal institution, and our laws must reflect its character.

In our discussion, specific reference was made to divorce laws. It is from that dimension that I will, mainly, approach this subject.  Why, one asks, are consenting parties to a divorce still being required to justify their decisions to do so? Why are couples being put through needless hardship, when they have settled on the position that they want to disavow their very personal choices?

 In terms of our marriage laws, divorce is not failure based. You cannot simply agree that the marriage has failed. It is fault based. Our laws dictate a blame game, as a precondition for divorce. You must prosecute, and take your spouse to the cleaners, in open court, as a precondition for your exit. Parties cannot simply say; “look, we are no longer compatible, and have decided to go our separate ways. We have no ill and will continue to encourage and support each other in our separate journeys through life”.

The question is; what business does society have in the reasons as to why people are divorcing. What business do courts have, in determining if people should stay together? Does the State own marital unions, such that its consent should be sought to end same. In my view, society is being gravely meddlesome. The laws of marriage indeed must facilitate the convenience of the parties, and must support marriages. That can be done without forcing people to live together, and setting up stages for emotional and psychological torture.  This character of our laws may be responsible in part, to all the domestic violence we see. For example, one cannot by law, obtain a divorce within the first two years of a marriage. To do so, they must show that they are suffering extreme hardship, and/or exceptional depravity. In other words, hardship and depravity do not even suffice. Parties are in fact expected to suffer. By this condition, our marriage laws condone and encourage domestic violence.

Because of the burdens couples who have lost faith of their unions are put through, divorce has become very expensive. Often, estates are wiped out in legal fees and couples end up poor and disadvantaged. I have seen lawyer fees running into hundreds of thousands.

Thanks, again to this unfortunate state of affairs, divorce cases take forever to resolve and only serve, needlessly to clog court rolls. A party who wants to leave a marriage should not be expected by the law to give any reasons for doing so, any more than they were expected to give reasons coming into the marriage.

It is a personal decision, they should only discuss, at their absolute discretion, with their families and pastors. Even then, the final word must be their own and must be respected. Courts, in particular, have no business in it. Their role should be limited purely, to ancillaries. Even such should be resolved mainly by court annexed mediation. We do know that in this equation women suffer more than us men do. Patriarchy has ordered things in such a way that men, often, control the family economy. We must, as a nation, reform our marriage laws. I would not want my children to grow up in a society where the law forces them to stay in abusive unions. I do not want laws that say my children must suffer “extreme hardship”, and “exceptional depravity” before they can be saved.

To be sure, all the afore-going, is a relic of patriarchy and prejudice, spanning centuries. There used to be an action in law, for restitution of conjugal rights. A spouse who felt denied conjugal rights had a right to sue their partner to enforce such a right. Put in the simplest terms, judicial rape, existed. Thankfully, it is no longer there, but other forms of societal prejudice have remained.

I respect the marriage institution as God ordained. I just believe that our energies could be better invested in supporting functional marriages than forcing people who might not even like each other anymore, to be together. We can have institutions targeted at keeping families healthy and preventing divorces. We can focus on having institutions where abused partners are counselled, and where abusive partners are rehabilitated. If we really need to help, we can assist by making available institutions where troubled couples can receive free, professional counselling.

On account of society’s meddlesome character, a system of prejudice has been institutionalised. The stigmatisation of divorced couples is even official. I have often looked at the notices at the district commissioners offices. The tag; “divorcee”, follows you into the next marriage. The question is, why can’t people just revert to their status? Why do we put our people through so much?