11

Marriage

The institution of marriage – from its creation to dissolution – is a fertile

ground for private international law problems. Persons of different domi-
cile, habitual residence or nationality may fall in love and marry in a
country where they happen to be or choose. In addition to marital relations
between persons of the opposite sex, same-sex relationships are increas-
ingly becoming significant in Africa. The media is filled with news on such
relationships, politicians and religious leaders have joined in the debate,
and there have been attempts to legislate on the subject in some countries.
Regardless of the nature of a marriage, questions relating to the formal
validity of the marriage, the capacity of the parties to marry, the effect of
the marriage on their property rights, and the recognition of the marriage
celebrated abroad may arise. This chapter addresses these questions.

Nature of marriage
Although it is not a purely private international law issue, the question
of ‘what is a marriage’ often raises significant private international law
problems. Marriage relates to a person’s status; a number of private
international law issues turn on it. In some of the countries under study,
marriage has been statutorily defined as ‘the voluntary union of a man
and a woman intended to last for their joint lives’.1 In many of the
countries, marriage is not expressly defined by statute; however, it can
be argued that in a true and proper interpretation of the relevant statutes,
they envisage only relationships between a man and a woman.2 Both

1
Kenya – Matrimonial Causes Act 1941, s. 2 (see also Marriage Bill 2007, s. 3); Sierra
Leone – Matrimonial Causes Act 1950, s. 2; Tanzania – Law of Marriage Act 1971, s. 9(1).
2
See, e.g., Botswana – Marriage Act 2001; Gambia – Civil Marriage Act 1938, Christian
Marriage Act 1862 and Muslim Marriage and Divorce Act 1941; Ghana – Marriages Act
1884; Kenya – Marriage Act 1902; Malawi – Marriage Act 1903; Nigeria – Marriage
Act 1990; Uganda – Marriage Act 1904; Zambia – Marriage Act 1918; Zimbabwe –
Marriage Act 1964. When celebrating a marriage under many of these Acts, the

181

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 182 family law

monogamous and potentially polygamous marriages, often referred to as

‘African customary marriages’3 (including those contracted abroad),4 are
recognised in the countries under study.
It still remains highly contentious in most of the countries under study
whether associations between persons of the same sex5 should be recog-
nised as marriage. In Zambia, a marriage between persons of the same
sex is void.6 It is only in South Africa where civil unions solemnised
either as a marriage or a civil partnership are recognised.7 The consti-
tutional foundations of South Africa’s Civil Union Act 2006 and the
judicial decisions which preceded it8 can be found in the constitutions of

celebrating official is expected to declare and announce the parties as ‘man and wife’. It is
submitted that this would be interpreted to mean that only marriages between a man and
woman are contemplated.
3
See, e.g., Botswana – Marriage Act 2001, ss. 22–7; Kenya – Marriage Act 1902, s. 37;
Malawi – Marriage Act 1903, s. 36; Nigeria – Marriage Act 1990, s. 35; South Africa –
Marriage Act 1961, s. 28; Tanzania – Law of Marriage Act 1971, s. 25; Uganda – Marriage
Act 1904, s. 36; Zambia – Marriage Act 1918, s. 34; Zimbabwe – Customary Marriages Act
1917. See also Gambia – Muslim Marriage and Divorce Act 1941. In some of these
countries there is a requirement that customary marriages should be registered.
4
See generally Adegbola v. Johnson [1921] 3 NLR 89; Onikepe v. Goncallo [1900] 1 NLR 41
and Zimbabwe – Customary Marriages Act 1917, s. 3(1)(d).
5
There appears to be a customary practice in some of the countries under study which
allows a woman to marry another woman. This has been described in the literature and
case law as ‘woman to woman marriage’. Cotran describes this marriage as: ‘A woman past
the age of [among the Nandi and Kipsigis] child-bearing and who has no sons may enter
into a form of marriage with another woman. This may be done during the lifetime of her
husband, but is more usual after his death. Marriage consideration is paid, as in regular
marriage, and a man from the woman’s husband’s clan has sexual intercourse with the girl
in respect of whom marriage consideration has been paid. Any children born to the girl are
regarded as the children of the woman who paid marriage consideration and her husband.’
E. Cotran, The Law of Marriage and Divorce (London: Sweet & Maxwell, 1968), vol. 1, p.
117. The woman who takes a wife becomes a man and (except for the absence of sexual
intercourse with her wife) behaves in all social contexts exactly as would any ordinary man.
The sole object of this relationship is to enable the female ‘husband’ to acquire a male heir
for her property. R. Smith Oboler, ‘Is the Female Husband a Man? Woman/Woman
Marriage among the Nandi of Kenya’ (1980) 19 Ethnology 69–88. Such a marriage has
been recognised in Kenya for the purposes of inheritance in The Matter of the Estate of
Cherotich Kimong’ony Kibserea (Deceased), Succession Cause No. 212 of 2010 (High Court,
Kenya, 2011). However, in Nigeria it was held in Eugene Meribe v. Joshua C Egwu [1976] 1
All NLR [Part 1] 266 that a custom which permits the marriage of a woman to another
woman is contrary to public policy and ought not to be upheld by the court.
6 7
Matrimonial Causes Act 2007, s. 27(1)(c). Civil Union Act 2006.
8
Minister of Home Affairs v. Fourie 2006 (1) SA 524; National Coalition for Gay and
Lesbian Equality v. The Minister of Justice 1999 (1) SA 6; National Coalition for Gay and
Lesbian Equality v. Minister of Home Affairs 2000 (2) SA 1.

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 marriage 183

all the countries under study. These foundations include freedom of

association and the right not to be discriminated against. It remains
to be seen whether courts and legislators in other countries under study
will follow a similar path. There is little prospect of this happening,
despite growing international and domestic pressure on the countries
to recognise such relationships. Indeed, there have been legislative
attempts – often met with disapproval from human rights organisations –
in countries such as Nigeria, Uganda, Malawi and Zimbabwe – to
criminalise same-sex marriages.9

Formal and essential validity of marriage

Ghana
The essential validity of marriage is determined by the antenuptial lex
domicilii of both parties. Accordingly, in a situation where a Sierra Leone
domiciled man married a Ghanaian domiciled woman in Ghana, it was
held that the validity of the marriage had to be determined not only by
the law applicable in Ghana, but also by the law applicable in Sierra
Leone.10 However, a Ghanaian court may uphold a marriage as valid on
grounds of public policy even though it is apparently void under the law
of the domicile of one of the parties.11

Kenya
The formal validity of a marriage is determined by the lex loci celebra-
tionis and the essential validity of the marriage determined by the
lex domicilii of the parties or their matrimonial domicile.12 Consent
to marriage is a question of form and is determined by the lex
loci celebrationis.13

9
In December 2011, the Nigerian Senate voted to adopt the Same Gender Marriage
(Prohibition) Bill 2011. The bill prohibits same gender marriage contracts and the
recognition in Nigeria of such contracts entered into in foreign countries. Sex
between persons of the same gender is already a crime in most of the countries under
study.
10
Davis v. Randall [1962] 1 GLR 1.
11
In re. Kariyavoulas (Deceased); Donkor v. Greek Consul-General [1973] 2 GLR 52.
12
In re. an Application by Barbara Simpson Howison [1959] EA 568 at 572–3.
13
In re. an Application by Barbara Simpson Howison [1959] EA 568 at 573.

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 184 family law

Lesotho
The lex loci celebrationis determines whether a marriage celebrated
abroad is valid.14 A marriage valid under the laws of the place of
celebration will be recognised as valid in Lesotho.15

Malawi
The validity of marriage, insofar as formal requirements are concerned,
is governed by the lex loci celebrationis.
In determining the essential validity of marriage, the law of the
intended matrimonial home, as opposed to the law of the domicile of
the parties, is to be preferred.16

Nigeria
A marriage is void if it is not a valid marriage under the law of the place
where it took place, by reason of a failure to comply with the require-
ments of the law of that place with respect to the form of solemnisation
of marriages.17

South Africa
The validity of marriage is tested by the lex loci celebrationis.18 This rule
applies to same-sex relationships celebrated abroad.19

Tanzania
A marriage contracted outside Tanzania is recognised as valid if: it was
contracted in a form required or permitted by the law of the country

14
Mohapi v. Motleleng (1985–9) LAC 316. On the facts it appears the court was dealing
with the formal validity of the marriage.
15
Liaquat Anwary v. Geeti Ayub Saifee, CIV/APN/172/90 (High Court, Lesotho, 1990).
16 17
Mndolo v. Mndolo [1978–80] 9 MLR 101. Matrimonial Causes Act 1990, s. 3(1)(c).
18
Forsyth, p. 280. Pretorius v. Pretorius 1948 (4) SA 144; Santos v. Santos 1987 (4) SA 150;
Chitima v. RAF [2012] 2 All SA 632. This position is, however, not free from doubt since
there are cases which appear to suggest that the essential validity of marriage is regulated
by domicile. Ex p. Cathrall 1965 (2) SA 505 (decided under a repealed legislation). See
generally: Guggenheim v. Rosenbaum (2) 1961 (4) SA 21, which held that the proper law
of contract governs an action for breach of promise to marry.
19
AC v. CS 2011 2 SA 360.

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 marriage 185

where it was contracted; each of the parties had, at the time of the
marriage, capacity to marry under the law of the country of his or her
domicile;20 and both parties freely and voluntarily consented to the
marriage or, where either party did not freely and voluntarily consent
to the marriage, the parties have freely and voluntarily consummated
the marriage.21 Parental consent to marry is considered a question of
form and is governed by the lex loci celebrationis.22

Zimbabwe
The form and ceremonies of entering into a contract of marriage are
regulated by the lex loci contractus and the essentials of the marriage
contract are regulated by the lex domicilii.23 A marriage valid according
to the lex loci celebrationis would be recognised as valid in Zimbabwe
without a further requirement that it should be in compliance with
Zimbabwean law.24 However, such a marriage should not be contrary
to Zimbabwean public policy, repugnant to moral principles within
Zimbabwe, or lead to the laws and institutions of Zimbabwe being
undermined.25

Comments
Most of the countries under study draw a distinction between the
essential and formal validity of marriage. The main exception appears
to be South Africa, where it has been suggested that the sole test for
validity is the law of the place of celebration.26 It appears well established
that the formal validity of marriage is governed by the law of the place of
celebration. It has been held in Kenya and Tanzania that consent to
marriage is a question of form. It can also be inferred from the cases that

20
Where either of the parties is a Tanzanian, or is domiciled in Tanzania, both parties
should have capacity under Tanzanian law.
21
Law of Marriage Act 1971, s. 36. Section 37 contains similar requirements for marriages
contracted in foreign embassies.
22
Hasumati Chhaganlal v. Gulamali [1983] TLR 320.
23
Mandimika v. Mandimika 1997 (2) ZLR 352 at 355. But see Chikosi v. Chikosi 1975 (2)
SA 644, where it was held that capacity to contract a valid and effective marriage is
ascertained by reference to the lex loci celebrationis.
24
Bennett v. Master of the High Court 1986 (1) ZLR 127.
25
Kassim v. Ghumran 1981 ZLR 227, 1981 (4) SA 79; Noratam v. Noratam 1970 (1) RLR 84.
26
There are dicta in the Zimbabwean case of Kassim v. Ghumran 1981 ZLR 227, 1981 (4)
SA 79 supporting this position.

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 186 family law

issues such as who has authority to celebrate a marriage, where it should

be celebrated and how, would be characterised as questions of form.
The law that determines essential validity varies in the countries under
study. The domicile of both parties, the matrimonial domicile, and the
intended matrimonial domicile have been held as potential candidates
for the law governing the essential validity of marriage.27 There is
authority in Ghana which suggests that public policy may be invoked
to overcome the injustice that may be occasioned by the application of
the dual domicile test as the law governing essential validity.
The distinction between formal and essential validity of marriage is
sometimes difficult to draw. In South Africa, where the distinction is not
drawn, it has been argued that not doing so tends to cut down on the
number of limping marriages, with their attendant hardships and social
undesirability. A rule that validity of marriage is governed by the lex loci
celebrationis is also simple, clear and easy to apply – the loci celebrationis
can be easily ascertained.28 There is a lot to be said for adopting a simple
rule that the validity of a marriage should be governed solely by the law
of the place of celebration.29 Such a rule can be subjected to a subsidiary
rule that, in appropriate cases (such as where there has been a conscious
effort by the parties to celebrate the marriage abroad to evade an essential
requirement of the law of their domicile) public policy may be invoked to
deny recognition to marriages validly celebrated abroad.30

Marriage and property rights of spouses

Botswana
In the absence of a special contract, the proprietary rights of spouses
are governed by the law of the husband’s domicile at the time of
the marriage.31 There is a presumption that community of property,
community of profit and loss, and the marital power or any liabilities
or privileges resulting from marriage shall not be attached to a marriage

27
For an assessment of the merits and demerits of these approaches to essential validity, see
Cheshire, North & Fawcett, pp. 896–9.
28
Forsyth, p. 281.
29
Indeed, this appears to have been the common law rule prior to 1861 when the distinction
between formal and essential validity was introduced by the House of Lords in Brook v.
Brook (1861) 9 HL Cas. 193.
30
Kassim v. Ghumran 1981 ZLR 227, 1981 (4) SA 79.
31
Thebe v. Kemodisa 2001 (2) BLR 263. See also Mtui v. Mtui 2001 (2) BLR 333; Ljubica v.
Dizdarevic, MAHLB-000650-07 (High Court, Botswana, 2008).

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 marriage 187

solemnised between spouses whose matrimonial domicile is in Botswana,

unless such spouses execute an instrument in writing to the contrary.32

Lesotho
The law governing the proprietary consequences of marriage is the law of
the husband’s domicile at the time of marriage.33

Malawi
Where Malawians marry abroad and purport to submit themselves to the
matrimonial property regime of the country where the marriage was
celebrated, and if they subsequently divorce in Malawi, evidence must
be given of the law governing that property regime before it can control
the division of their property. If no such evidence is presented, the court
will apply Malawi law as the lex fori.34

South Africa
In the absence of an antenuptial contract,35 the proprietary rights
of spouses are governed by the law of the country where the husband
was domiciled at the time of the marriage – the law of the country of
any intended matrimonial home is irrelevant.36 It remains to be decided
whether and how this rule would apply to same-sex relationships
celebrated abroad.37 A subsequent change in the husband’s domicile
(even to a South African domicile) does not affect the law governing
the proprietary consequences of the marriage.38 Similarly, neither the
Matrimonial Property Act 1984, nor the Marriage and Matrimonial
Property Law Amendment 1988, were intended to displace the estab-
lished principle that the lex domicilii matrimonii at the time of marriage

32
Married Persons Property Act 1970, s. 1.
33
Mohapi v. Motleleng (1985–9) LAC 316; Lepelesana v. Lepelesana [1977] LLR 190.
34
Maseko v. Maseko [1973–4] 7 MLR 310. See also Gouveia v. Gouveia [1923–60] ALR Mal. 239.
35
On what constitutes an antenuptial contract and the law governing it, see Lagesse v.
Lagesse 1992 (1) SA 173; Ex p. Spinazze 1983 (4) SA 751; Ex p. Spinazze 1985 (3) SA 650.
36
Sperling v. Sperling 1975 (3) SA 707; Frankel’s Estate v. The Master 1950 (1) SA 220;
Estate of Frankel v. The Master 1949 (2) SA 287; Bell v. Bell 1991 (4) SA 195; Pitluk v.
Gavendo 1955 (2) SA 573; Ex p. Wolfenden et Uxor 1959 (2) SA 53.
37
AC v. CS 2011 2 SA 360.
38
Anderson v. The Master 1949 (4) SA 660; Bell v. Bell 1991 (4) SA 195.

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 188 family law

determined its proprietary consequences.39 When the South African rule

of private international law prescribes that the proprietary consequences
of a foreign marriage must be determined in accordance with the law of
the matrimonial domicile, that reference should generally be to the entire
law of the lex causae, including its transitional law.40

Uganda
If a person whose domicile is not in Uganda marries a person in Uganda
whose domicile is in Uganda, neither party acquires by the marriage any
rights in respect of property belonging to the other party that is not
comprised in a settlement made previous to the marriage, and which he
or she would not acquire by the marriage if both were domiciled in
Uganda at the time of the marriage.41

Zimbabwe
The proprietary consequences of a marriage are governed by the law of
the husband’s domicile at the time of the marriage.42 Subsequent con-
version of the marriage from a polygamous to a monogamous one – even
when performed abroad – does not change the applicability of this
principle. Thus, where parties domiciled and married under customary
law in Zimbabwe converted their marriage into a monogamous one in
Nashville, United States, it was held that the position with regard to their
proprietary rights once fixed by the valid customary marriage remained,
by virtue of the domiciliary law of the husband, to govern their propri-
etary relationship, and the second marriage could not alter that.43

Comments
The laws in Botswana, Lesotho, South Africa and Zimbabwe appear
unanimous that the proprietary consequences of marriage are governed

39 40
Esterhuizen v. Esterhuizen 1999 (1) SA 492. Sperling v. Sperling 1975 (3) SA 707.
41
Succession Act 1906, s. 34. Under s. 3 of the Act, no person shall, by marriage, acquire
any interest in the property of the person whom he or she marries, nor become incapable
of performing any act in respect of his or her own property which he or she could have
done if unmarried.
42
Lafontant v. Kennedy 2000 (2) ZLR 280; G v. G 2003 (5) SA 396, 2002 (2) ZLR 408;
Beckford v. Beckford, HC 3480/2003 (High Court, Zimbabwe, 2006).
43
Chikosi v. Chikosi 1975 (2) SA 644.

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 marriage 189
by the law of the husband’s domicile at the time of marriage.44 South
African and Zimbabwean jurisprudence firmly establish that neither
a subsequent change in the husband’s domicile, nor the conversion
of the marriage, affects the law governing the proprietary consequences
of the marriage, which is fixed at the time of marriage. Put differently,
the principle of immutability is well entrenched in South African
and Zimbabwean law as far as the law governing the proprietary conse-
quences of marriage is concerned. Indeed, this position is likely to be
accepted in Lesotho, Swaziland and Namibia, which closely follow South
African law.
In the light of human rights imperatives and the fact that, at present,
the law in some of the countries under study allows a married woman
to maintain an independent domicile, it is open to question whether the
principle that the proprietary consequences of marriage are governed by
the law of the husband’s domicile at the time of marriage is still valid.
The rule has been criticised for its rigidity45 and its validity questioned
in a ‘gender equal society’.46 It is also incapable of application in cases of
same-sex marriages. A potential alternative to the husband’s domicile
is the law of the intended matrimonial home, but the application of this
could also lead to uncertainty.
The position is less clear in the common law countries, although it
is likely they will adopt the domicile of the husband for determining the
proprietary consequence of marriage.47

44
Proprietary consequences of marriage deal with issues such as whether the marriage is
one in or out of community and maintenance (Hassan v. Hassan 1998 (2) SA 589). On
whether the right to donate property to the other spouse or for the prohibition of such
donation is a proprietary right, see Powell v. Powell 1953 (4) SA 380. Depending on
whether one accepts the characterisation, an important proprietary consequence of
marriage in some of the countries under study is the rule which allows marriage to
revoke the pre-marital wills of the spouses. See, e.g., Gambia – Wills Act 1992, s. 8(1)(a);
Kenya – Law of Succession Act 1981, s. 19; Malawi – Deceased Estates (Wills, Inheritance
and Protection) Act 2011, s. 10(1); Zimbabwe – Wills Act 1987, s. 16. Kenya is currently
debating the Matrimonial Property Bill 2011. The bill contains no direct private inter-
national law-related provisions.
45
Forsyth, pp. 295–302.
46
Sadiku v. Sadiku, Case No. 30498/06 (High Court, South Africa, 2007).
47
This approach was implicit in the Tanzanian case of Juma v. Mlinga, Civil Appeal No. 10
of 2001 (Court of Appeal, Tanzania, 2002).

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