The family unit in customary law is the household (or”kraal” as it is most commonly referred to in the law reports). The family group of each wife forms a “house” as defined in the Black Administration Act. Whenever a man has more than one wife there are two or more” houses” in one household (or “kraal”). The concepts of both house and household being primarily of groups of persons it makes no difference whether the geographical place of residence is rural or urban. The senior in law is not necessarily the oldest, male member of the family but he will be the head of the household (or kraalhead) as referred to in a number of law reports.
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The main principle of customary law holds for all tribes in Southern Africa. As there are a number of tribal variations attention is drawn to the fact that all examples are taken from the law of the Cape Nguni tribes including those in the Ciskei and Transkei. Where variations particular to other tribes arise the sources of the law of the tribe in question should be consulted. Statute law on such subjects as the application of customary law and the choice of law is of effect throughout South Africa.
The Divorce Act , which is the divorce law that came into operation in July 1979 brought about a total reform of the South African Law of divorce procedure and at present the divorce process and its consequences are largely determined by statute. Prior to the coming into operation of the Divorce Act, the common law recognized two grounds for divorce, namely adultery and malicious desertion. Adultery included forms of sexual intercourse such as sodomy and bestiality and desertion court be action or constructive, In addition to these common law grounds two further grounds were added by statute, in curable insanity for a prior of at least seven years and imprisonment for at least five years that resulted from habitual criminality. Except in cases of insanity, divorce was based on the assumption that one of the parties was at fault; in other words the success of plaintiff’s action for divorce depended on proof of the willful commission of a matrimonial offence by the defendant.
In the enquiry that preceded the new divorce law, the South African Law Commission determined both that it was ideologically unsupportable to base the law of divorce on the guilt principle and that it was unrealistic to assume that the fault for marital break-down lay with only one party to the marriage. The application of the guilt principle had resulted in the undesirable situation that by far the majority of divorce actions were dressed up as action based on some form of marital misconduct by the defendant, when all the parties, as well as the court knew that the parties were before the court by common agreement. Furthermore since only the “innocent spouse could sue for divorce, no divorce was possible in situations where the marriage was dead, the guilty party desired a divorce but the innocent spouse refused to co-operate. The commission recognized that in truth the essence of divorce is the candid acceptance on the part of both parties that the marriage has failed. The commission recognized further that the disintegration of marriages resulted from a variety of contributory factors a social problem and was not always or exclusively, due to marital misconduct. Accordingly, the primary aim of a sound law of divorce is to take account of the social reality of marital breakdown, while at the same time providing for the protection of the interest of society in general and for its weaker members in particular. For this reason the commission proposed that where the marital relationship had in fact broken down irretrievably a decree of divorce should be granted. However it was not prepared to support the principle of consensual divorce as this would detract from marriage as a social institution. In the interest of a society which recognized marriage as an institution divorce should be at the discretion of the court and reconciliation should be encouraged; there should be an embargo on the publication of certain particulars relating to the divorce and the interests of the children of the marriage should be recognized and considered when determining whether or not an order for the dissolution of the marriage should be granted.
In the result the Divorce Act stipulates only two grounds for divorce, namely irretrievable breakdown and mental illness or unconsciousness. Both embody the general principle that marriage comes to an end then the consortium that is the core of the marriage relationship no longer exists. With regard to irretrievable break-down as a ground this will generally but not inevitably , be as a result of the conduct of one or both parties to the marriage, while mental illness or unconsciousness will generally arise in circumstances beyond their control. It should be noted that the law pertaining to void and void able marriages is unaffected by the Divorce Act.
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