In the Kingdom of Eswatini, love—and the law—can take two very different forms. Thanks to the country’s unique dual legal system, couples may find themselves married not once, but twice—once under Swati law and custom, and again under Roman-Dutch common law. While each marriage is legally valid, each also follows its own rules for recognition—and dissolution.

A Tale of Two Legal Systems

The foundation of Eswatini’s dual legal landscape dates back over a century. The 1903 Order in Council protected Swati traditional institutions, affirming that the Governor would respect the laws already practiced by the Swati people. Soon after, the General Law and Administration Proclamation No. 4 of 1907 introduced Roman-Dutch common law as the general law of the land.

Fast forward to today, Section 252 of the Constitution affirms the coexistence of both systems. Roman-Dutch common law applies broadly, while Swati customary law—governed by oral tradition—remains fully recognized and enforceable, particularly within the context of family and marriage matters. Section 227 of the Constitution further provides that traditional governance, including customary marriages, shall be administered in accordance with Swati law and custom.

Customary vs Civil: When Traditions Meet Statute

Swati customary marriages are deeply rooted in tradition and ritual. Unlike civil marriages governed by the Marriage Act No. 47 of 1964, which are formalized through documentation and legal process, customary marriages are unwritten and passed down through generations via oral tradition.

What constitutes a valid Swati marriage? Courts have provided guidance. In Rex v Fakudze (1970–76 SLR 422 at 423), the court confirmed that a customary marriage becomes valid once the bride is ceremonially smeared with red ochre by a female member of the groom’s family. Rex v Timothy Mabuza (1979–81 SLR 8) reinforced that the absence of lobola (bride price) does not invalidate the marriage once the red ochre ritual is complete. But just as there are rituals to make a marriage, there are also rituals required to dissolve one.

In Samuel Hlawe v Beatrice Seyama (56/2016) [2017] SZSC 41, the Supreme Court ruled that a Swati customary marriage had not been validly dissolved because the husband’s family had failed to follow proper dissolution steps. Discovery of adultery by the wife, though grave, was not sufficient on its own. The required steps—including family meetings, reprimanding the wife, and the ceremonial sending of the wife home with her belongings (kubopha umtfwalo)—had not taken place. Therefore, the court held that the marriage remained valid.

Double Marriages: One Love, Two Legal Frameworks

In Eswatini, it is possible—and common—for couples to have double marriages: one under customary law and another under civil law. Section 7 of the Marriage Act expressly allows individuals married under Swati custom to remarry each other in terms of civil rites. This means both marriages are valid in the eyes of the law, and neither cancels out the other. However, this legal pluralism comes with a twist: each marriage must be dissolved separately.

This principle was clearly affirmed in Mduduzi Masiko Dlamini v Philile Nonhlanhla Dlamini (nee Ndzinisa) (33/2017) [2017] SZSC 58. The couple had undergone both a Swati customary and a civil marriage but only obtained a divorce under one legal regime. The court held that each marriage stood on its own and must be independently dissolved for the parties to be truly free of matrimonial obligations.

Which Law Governs the Consequences?

The question of which law governs the consequences of marriage can be found in the fine print—specifically, item 17 of the marriage certificate under the Births, Marriages and Deaths Act of 1983. This item allows parties to declare whether they wish for their marriage’s consequences to be governed by customary or civil law.

Moreover, Sections 24 and 25 of the Marriage Act provide that when both parties to a marriage are African, the consequences of the marriage are presumed to be governed by customary law—unless expressly stated otherwise.

This distinction matters. Under traditional Swati law, a wife historically had no property rights, with matrimonial power resting solely with the husband. However, this patriarchal norm was overturned in the landmark case of Doo Aphane v Registrar of Deeds, where the court declared Section 16(3) of the Deeds Registry Act—which barred women married in community of property from registering immovable property in their name—as unconstitutional. This was a victory for women’s property rights and gender equality in marriage.

South Africa’s Approach: A Contrast

It’s worth comparing Eswatini’s position with that of neighbouring South Africa. While South African law only recognizes civil marriages as legally binding in the strictest sense, customary marriages are now recognized and given statutory protection under the Recognition of Customary Marriages Act. Rights to property, inheritance, and marital support are increasingly protected.

Eswatini, on the other hand, recognizes both marriages equally—but insists that each must be respected and dissolved according to its own procedures.

Final Thoughts

The legal reality in Eswatini is that love can come with two sets of vows—and two sets of legal consequences. Whether marrying under Swati custom, civil law, or both, couples should be aware of what each marriage entails—not just emotionally, but legally.

In the event of a divorce, one ceremony is not enough. Both marriages must be dissolved to fully sever the legal bond.

Eswatini’s dual legal system offers recognition to both modern and traditional values. But it also requires an appreciation of the delicate balance between the two—especially when love turns to litigation.