Date published: 25-04-2025

Historically, divorce in civil rites marriage in Eswatini was governed by Roman Dutch Common Law, which recognized only two grounds for divorce: adultery and desertion. This limited framework often left many individuals in challenging situations, as the grounds for obtaining a divorce were restrictive and failed to accommodate the innumerable circumstances that may warrant the dissolution of a marriage. As a result, many individuals felt compelled to remain in unhappy or abusive marriages, leading to situations of domestic violence. The inability to seek legal recourse through divorce contributed to a cycle of suffering for victims, highlighting the urgent need for reform in the divorce laws.

Key changes in Divorce Law

In response to the challenges posed by the historical grounds for divorce, Parliament has been slow to enact the Divorce Act in Eswatini and/or amend the old and archaic Marriage Act of 1964. The failure by Parliament to address the plight of unhappy married individuals has led the Superior Courts to develop the Roman Dutch-Common Law to fill the gaps left by the existing legal framework.

The Eswatini Supreme Court in the case of Tesar v Tesar in late 2024 addressed the evolving nature of marriage in contemporary society. The judgment was written by Judge Sabelo Matsebula siting with other two Judges Nkululeko Hlophe and Judge S. B. Maphalala The court stated:

“The sanctity of marriage principle, with the changing times, has been dealt a further blow by most Western and to a lesser extent Eastern countries and next to zero African countries by passage of legislation legalizing same-sex marriages. The argument that a marriage is a holy union between a man and a woman is becoming difficult to support, and instead marriage is becoming more and more of a contractual project in nature, sui generis. Under this contract, the grounds that can be advanced for termination of the contract known as divorce are many under the umbrella of irretrievable breakdown of marriage. Any conceivable thought could be a ground for divorce; it could be emotional, economic, financial, lack of respect for the other party, and the traditional grounds of adultery and desertion. The marriage vows have become meaningless. The marriage contract has become akin to a commercial contract; hence it should be treated so.”

The Court also observed that in changing times in Eswatini and in other jurisdictions an innocent party cannot sue a person who commits adultery with one’s spouse because that spouse will be exercising her / his freedom of association as set out in the Constitution. This perspective reflects a significant shift in understanding marriage, suggesting that it is increasingly viewed through a contractual lens rather than solely as a sacred union.

This judgment seeks to introduce a new ground for divorce in Eswatini that was not previously recognized: the irretrievable breakdown of a marriage relationship due to emotional abuse, economic abuse, financial abuse, domestic abuse, and similar factors. This reflects a significant shift towards acknowledging the various forms of harm that can affect marital relationships.

In fact, the High Court in 2017 as per Judge Titus Mlangeni in the Resting v Resting judgment emphasized the importance of respect of constitutional rights in marriages, stating that:

“The Passing reference to the Chapter III rights entrenched in our constitution, for the constitution is, after all, the ground norm of our legal system, and the validity of the common law must be measured against it. Of immediate relevance are the freedom of association and the protection of dignity of the individual. It is the constitutional right of the individual to choose who to relate with, and if a party to marriage chooses to be involved with a third party the regrettable reality is that his choice has to be respected by all, and his legal obligations should not go beyond the other party to the marriage who, in turn, has redress in the form of divorce. Because of the freedom of association, it is unacceptable to put a third party through the ordeal of litigation when the relationship is undeniably voluntary.”

This perspective reinforces the notion that individual rights and freedoms must be considered within the context of marital relationships, shaping the legal framework surrounding divorce.

The High Court, as per Judge T. M. Mlangeni, also endorsed irretrievable breakdown of marriage as a new ground of divorce in Eswatini in that ‘it offers a flexible exit door for spouses who want out of marriage’.

The Resting vs Resting judgment is where the Eswatini High Court dismissed a damages claim for adulty and held that such a claim is not in line with the Constitutional rights to freedom of association. However, this should not give a licence for individuals to sleep with someone’s wife or husband. Our customs frowns upon such and it may lead to death. 

Conclusion

The recent judgments in Eswatini, particularly Tesar v Tesar and Resting v Resting, signify a pivotal shift in the understanding and legal treatment of marriage and divorce. The introduction of irretrievable breakdown as a ground for divorce, particularly in cases involving emotional, economic, and domestic abuse, reflects a growing recognition of the complexities and realities of modern relationships.

Moreover, the emphasis on constitutional rights, particularly the freedom of association and the protection of individual dignity, underscores the necessity of respecting personal choices within marital dynamics. As the legal landscape evolves, it is essential for the law to adapt to the changing societal norms, ensuring that individuals have the means to seek redress and that their rights are upheld.

In light of these developments, the legal framework surrounding marriage and divorce in Eswatini is not only becoming more inclusive but also more attuned to the diverse experiences of individuals within marital relationships. This evolution marks a significant step towards a more equitable legal system that acknowledges the inviolable rights and dignity of all parties involved.

Should you require further elucidation on the subject you may contact the writer.