Journal Article

Custody Disputes Under African Customary Family Law in Malawi: Adaptability to Change?

Lea Mwambene

in International Journal of Law, Policy and the Family

Volume 26, issue 2, pages 127-142
Published in print August 2012 | ISSN: 1360-9939
Published online June 2012 | e-ISSN: 1464-3707 | DOI: http://dx.doi.org/10.1093/lawfam/ebs004
Custody Disputes Under African Customary Family Law in Malawi: Adaptability to Change?

More Like This

Show all results sharing these subjects:

  • Family Law
  • Marriage and the Family

GO

Show Summary Details

Preview

In Malawi, there are two predominant African customary family law systems: matrilineal and patrilineal. Under the matrilineal system, children born in marriage are affiliated to the clan of the wife. In the patrilineal system, provided lobola obligations have been complied with, children born in marriage are affiliated to the clan of the husband. The 1994 Malawi Constitution alters these customary rules in that it gives both spouses equal rights to custody over their children irrespective of whether they were married under customary law or not. In addition, children's rights have received constitutional recognition. Included in this recognition is the understanding that both parents are under an obligation to provide care for the children. However, in deciding disputes relating to custody of children after divorce of a customary marriage, courts have adopted a variety of approaches that cannot be structured. These approaches raise questions about the way in which courts view their role in the development of customary family laws relating to children in the face of the constitution and social change. Perhaps with the constitutional recognition of children's rights an attempt is made to bring African customary law in line with the constitutional dictate of protecting children's rights as well as balancing it with social change. The central argument that is advanced in this article is that there is lip service to the interpretation and development of customary rules governing children in the face of the Constitution.

Journal Article.  7207 words. 

Subjects: Family Law ; Marriage and the Family

Full text: subscription required

How to subscribe Recommend to my Librarian

Users without a subscription are not able to see the full content. Please, subscribe or login to access all content.