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6 NEW GROUNDS FOR DIVORCE

By KWANELE DHLADHLA | 2023-05-28

Six new grounds for divorce have been provided for in the Marriage Bill, among which is impotence. 

The National Health Service (NHS) defines impotence as erectile dysfunction where a person becomes either unable to get an erection or unable to keep an erection for long enough to have sexual intercourse.

During the debate of the ministry of justice and constitutional affairs portfolio committee report on the Marriage Bill of 2022 at the House of Assembly yesterday, parliamentarians were strongly opposed to certain provisions of the Bill, which lists abuse (physical and mental) and non-declaration of bankruptcy prior to marriage as a valid reason for divorce.

Other grounds, according to the Bill include change of religion and sexual perversion together with desertion.

The Bill proposes that if either of the parties deserts the home for 12 months, this may result in automatic divorce.         

The legislators argued that any additions apart from the commonly known grounds for divorce, which customarily were adultery and witchcraft ought to be justified and incorporated in the proposed legislation with a view to improve marriages as opposed to providing an array of reasons for marriages not to last.

Hhukwini MP, Nkhanyeti Ngwenya enquired when and how the impotence would be determined and challenged the portfolio committee to provide clarity as to whether the impotence would have to be determined when getting married or at a later stage in the marital journey.

“When does the impotence get determined, when I’m marrying the woman or when we live together but I’ve been overwhelmed by sickness and can no longer be sexually active?

“Are we, as Parliament now saying someone must then be divorced?” wondered Ngwenya before the Marriage Bill portfolio committee report, which had been tabled by Kwaluseni MP Sibusiso Dlamini was withdrawn for further consultation and amendments.

The withdrawal, which happened two hours after the report had extensively been debated, was primarily on the basis of a clash between principles of civil marriage against Eswatini Law and Custom.

Parliament business was also adjourned by Speaker Petros Mavimbela after some MPs left the chamber, which led to the House not forming a quorum.  

 

The Bill, according to the Kwaluseni MP, equates civil marriage and traditional wedding (kuteka).

Manzini North MP, Macford Sibandze, who seconded tabling of the Bill, when defining how the proposed legislation addresses marriage in Eswatini said; “it seeks to strike a marital equilibrium between civil and traditional marriage.”

When further deliberating on the newly-added grounds of divorce, Lugongolweni MP Enos Magongo said non-disclosure of bankruptcy would be discriminatory.

He lamented that some of the changes, which they had proposed when the Bill was initially tabled, had not been incorporated in the portfolio committee report.   

“Non-disclosure of bankruptcy must not be a ground for divorce. Does it mean the poor, if you are poor, you will not be able to marry?” he said.

The automatic divorce in the case where either party has deserted the home for more than 12 months also came under fire from the legislators.  Minister of Labour and Social Security, Phila Buthelezi, said the Bill was in contrast with Eswatini Law and Custom because when growing up, he was accustomed to the belief that a woman, who had been traditionally wed, remained a wife until death.

 

He said even if the wife or husband would no longer reside together, they remained married.  “Growing up, I have always known that even if a traditionally wedded wife has given birth outside marriage, she still gets buried where she was wedded. However, we are now being told 12 months desertion warrants a divorce, which I am afraid is against Eswatini traditions,” said Buthelezi.

 

Minister of Tinkhundla and Administration, David Ngcamphalala, called for an extension of the 12-month period.

He wondered how the property would be divided in the case where the property had been prompted by the 12 months desertion.   

“The 12 months is too little. It must be reviewed,” said Ngcamphalala.

Won’t Marriage Bill open up Eswatini to polyandry – MPs  

Members of Parliament have questioned whether the provision, which compels males to seek approval from their wives before marrying another woman that does it mean women could also do the same.

Methula MP, Derrick Masuku asked Chairperson of the ministry of justice and constitutional affairs portfolio Chairperson and Kwaluseni MP, Sibusiso Dlamini, whether females would be allowed to request to have a second husband.

“Are we implying that a woman can also request to marry another man? I also need clarity as to who should make the 21 day notice ahead of a wedding,” Masuku wondered in reference to the provision, which requires publication of a notice ahead of a wedding to determine whether there were no objections.            

Deputy Prime Minister, Themba Masuku, applauded the Bill where it proposes that a marriage should be officially reported and issued with a certificate by the ministry of home affairs within 60 days.

This was because it would help reduce the litany of complaints from unmarried couples, which they had to address on a daily basis. Masuku was also happy with the provision, which states that any person below 21 years would have to seek consent from their parents. The DPM said it was impressive that the Bill had been aligned with the Children’s Act and Sexual Offences and Domestic Violent Act (SODV). “When a male requests his wife to marry a second wife, can the woman refuse or not,” Masuku asked.          

All males must be forced to marry at 40yrs – MP Timothy

Nkilongo Member of Parliament, Timothy Myeni wants all males to be compelled to have a wife if they are beyond 40 years.

 

Myeni has also recommended that all males be given at least E30 000 to start building a home after getting married.  

 

He made the submission during the debate of the withdrawn contentious Marriage Bill of 2022 portfolio committee report, which had been tabled by Kwaluseni MP Sibusiso Dlamini.

 

Myeni said he fully supports the Bill, particularly because it discourages cohabitation.

 

The MP said every male should be compelled to marry beyond 40 years of age mainly because it was highly unlikely for males to be sexually inactive by this age.

 

Therefore, he wondered who these males were engaging in sexual activities with.

 

“I suggest that males who are not married beyond 40 must be forced to do so.

This will help promote creation of happy families and avert early pregnancies as well,” said Myeni.         

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