THE LEGAL EFFECT OF MARRIAGE-STATUTORY AND CUSTOMARY Flashcards
the right to consortium
these are the rights and obligations placed on the parties to a marriage.
Conjugal rights
The parties to a marriage are entitled to conjugal rights. It is common sense that marriage is the
only established institution in which sexual intercourse can be demanded as a right. There is in
fact an implied consent to sex in marriage. In the absence of a good reason, it is unreasonable for
any party to a marriage to deny another sexual intercourse. In fact, if refusal to sex was to
prolong in a marriage, it would lead to unreasonable behavior and be a basis on which divorce can be granted.
Property rights during matrimony
The parties to a marriage have a right to matrimonial property. Matrimonial property refers to property that is acquired during the subsistence of the marriage. Property acquired before the
marriage does not generally form part of the matrimonial property. Therefore, no party must
deny the other, the right to matrimonial property.
The right to maintenance
A party to a marriage who is in a weaker financial position is entitled to reasonable maintenance provision from the party in a better financial position. there is a limit as regards circumstances when a wife will maintain a husband. The
Act limits the circumstances when a wife will be obliged to maintain her husband only in
circumstances where a husband is unable to earn an income due to old age, illness or disability of
mind or body.
Right to co-habit
The parties to a marriage are entitled to co-habit with each other, that is they have a right to live
together with each other. It follows that the absence of any good reason for one party to cease
living with the other, amounts to desertion of the other party.
Right to procreation
The parties under a marriage whether it be a statutory or customary marriage, have a right to
procreation. It follows therefore that the denial by one party of the other of the right to
procreation amounts to unreasonable behavior and hence a basis for dissolution of marriage
through divorce. An example of circumstances where a party will be regarded as denying the
other party the right to procreation would be circumstances where a party to a marriage without
the consent of the other party puts in place measures that prevent procreation, such as using
family planning or condoms without the consent of the other party.
