Customary marriage problematic
The marriage of Imelda Namutebi has once again brought to the fore questions of the insufficiency or ambiguity of our marriage laws.
By Chibita wa Duallo
The marriage of Imelda Namutebi has once again brought to the fore questions of the insufficiency or ambiguity of our marriage laws. In this case, the question that comes to mind is this: What is a customary marriage? Does it stop a party to it from contracting another marriage?
The one peculiar thing about customary marriages is their potential to be polygamous. Under the Registration of Customary Marriages Decree, this point is made abundantly clear. The practice of customary marriages has also not disappointed in this aspect. These marriages across the continent have demonstrated a high degree of polygamy.
There is no single definition of a customary marriage. It would appear from practice that there are almost as many customary marriage regimes as there are customs. Each culture has a fairly unique way of celebrating its marriages. There are, however, some common threads that run across cultures, giving a fairly consistent picture of what such marriages entail.
Apart from polygamy, there is the exchange of bride price, usually paid by the groom’s side to the bride’s parents. The nature of bride price varies from culture to culture. A number of cows, however, forms the core of this price. Bride price has been one of the most misunderstood and abused aspects of customary marriage.
Just last year, a referendum was held in Tororo to try and rid the district of this custom. The argument advanced by most opponents of bride price is that it keeps women in loveless and sometimes very violent marriages.
The women at times cannot exercise their right to leave such marriages for fear that refunding the bride price will put a lot of strain on the family resources. Many times the bride price will have already been used to get a wife for a son of the family.
In some places, bride price is refundable on the dissolution of marriage. In other cultures it is not. Where it is refundable, it has been criticised as a form of sale of the girl-child. Where it is not refundable, it has been defended as a gift or token of love to the bride’s parents.
It is this refund that forms the basis for another peculiarity of customary marriages. It has been held in several cases that there is no procedure for dissolving customary marriages. That customary marriages are contracted for life. This may explain the potential for polygamy. Rather than dissolve a subsisting marriage, the groom is allowed to marry an additional wife or wives without socially disrupting the existing arrangement.
Yet polygamy does not sit well with the present generation. With the advent of Christianity and urbanisation, polygamy is becoming less and less of an option. The result of this is that more and more men are opting to completely abandon the traditional arrangement. They either abandon their traditionally married wives and marry afresh in church or at the district commissioner’s. Or, they do a traditional ceremony and then crown it with a church wedding.
The most commonly asked question about traditional marriages is whether kwanjula, kuhingira or the introduction ceremony constitutes a marriage. It would seem that the Customary Marriages Registration Decree envisaged that the registration of a traditional ceremony, where both parents have consented, legalised tht arrangement as a marriage.
Indeed, before the advent of the modern marriage law and Christianity, the traditional ceremony was all that counted. The other modern trend is cohabitation. Two people just get together without outside involvement and begin living together. The major trouble with this arrangement is that if one of the parties walks out and goes to contract another marriage, society or the law has no way of intervening because it was not party to it in the first place.
The major advantage of the modern marriage arrangement over the traditional and cohabitation is that at the end of the ceremony a certificate is given. This certificate helps the parties to protect and enforce their rights. A party to such a marriage will not find it easy to just walk out and go and contract another marriage. They will have to follow established procedure.
Which is why, for all the moral and social reservations that may exist, legally speaking, Imelda Namutebi committed no offence in marrying Tom Kula. Of course he has to take responsibility for his children from the previous union. What he did may not make him the most loved man by his previous wife and family, but on the available facts, no offence was committed.
The marriage of Imelda Namutebi has once again brought to the fore questions of the insufficiency or ambiguity of our marriage laws. In this case, the question that comes to mind is this: What is a customary marriage? Does it stop a party to it from contracting another marriage?
The one peculiar thing about customary marriages is their potential to be polygamous. Under the Registration of Customary Marriages Decree, this point is made abundantly clear. The practice of customary marriages has also not disappointed in this aspect. These marriages across the continent have demonstrated a high degree of polygamy.
There is no single definition of a customary marriage. It would appear from practice that there are almost as many customary marriage regimes as there are customs. Each culture has a fairly unique way of celebrating its marriages. There are, however, some common threads that run across cultures, giving a fairly consistent picture of what such marriages entail.
Apart from polygamy, there is the exchange of bride price, usually paid by the groom’s side to the bride’s parents. The nature of bride price varies from culture to culture. A number of cows, however, forms the core of this price. Bride price has been one of the most misunderstood and abused aspects of customary marriage.
Just last year, a referendum was held in Tororo to try and rid the district of this custom. The argument advanced by most opponents of bride price is that it keeps women in loveless and sometimes very violent marriages.
The women at times cannot exercise their right to leave such marriages for fear that refunding the bride price will put a lot of strain on the family resources. Many times the bride price will have already been used to get a wife for a son of the family.
In some places, bride price is refundable on the dissolution of marriage. In other cultures it is not. Where it is refundable, it has been criticised as a form of sale of the girl-child. Where it is not refundable, it has been defended as a gift or token of love to the bride’s parents.
It is this refund that forms the basis for another peculiarity of customary marriages. It has been held in several cases that there is no procedure for dissolving customary marriages. That customary marriages are contracted for life. This may explain the potential for polygamy. Rather than dissolve a subsisting marriage, the groom is allowed to marry an additional wife or wives without socially disrupting the existing arrangement.
Yet polygamy does not sit well with the present generation. With the advent of Christianity and urbanisation, polygamy is becoming less and less of an option. The result of this is that more and more men are opting to completely abandon the traditional arrangement. They either abandon their traditionally married wives and marry afresh in church or at the district commissioner’s. Or, they do a traditional ceremony and then crown it with a church wedding.
The most commonly asked question about traditional marriages is whether kwanjula, kuhingira or the introduction ceremony constitutes a marriage. It would seem that the Customary Marriages Registration Decree envisaged that the registration of a traditional ceremony, where both parents have consented, legalised tht arrangement as a marriage.
Indeed, before the advent of the modern marriage law and Christianity, the traditional ceremony was all that counted. The other modern trend is cohabitation. Two people just get together without outside involvement and begin living together. The major trouble with this arrangement is that if one of the parties walks out and goes to contract another marriage, society or the law has no way of intervening because it was not party to it in the first place.
The major advantage of the modern marriage arrangement over the traditional and cohabitation is that at the end of the ceremony a certificate is given. This certificate helps the parties to protect and enforce their rights. A party to such a marriage will not find it easy to just walk out and go and contract another marriage. They will have to follow established procedure.
Which is why, for all the moral and social reservations that may exist, legally speaking, Imelda Namutebi committed no offence in marrying Tom Kula. Of course he has to take responsibility for his children from the previous union. What he did may not make him the most loved man by his previous wife and family, but on the available facts, no offence was committed.