The school of hard knocks

The school of hard knocks

MASERU-MARRIED or simply cohabiting? That is the dilemma many Basotho women are often faced with when their “husbands” die and in-laws move in to grab property while stripping them of any marriage rights.
And it seems Basotho women are falling victim in their numbers.
Many live for years – even decades – thinking that they are legally married, only to find out in the end that they were simply cohabiting and have no marriage rights.
Lesotho’s courts are clogged with such cases, highlighting the urgency of awareness campaigns on marriage laws and rights as well as the need for protection of women in such situations.
Although the courts have not yet compiled actual statistics of such cases, it seems many women cannot differentiate between what constitutes a legal marriage and just living together, otherwise known as cohabitating.

Court officials say such cases are far from isolated.
’Mampota Phakoe, the spokeswoman for the magistrates’ court, says many women end up living with married men who only separated from their wives, but are still legally married.
Some lack an understanding of what constitutes a customary marriage. Once they elope to a man and are welcomed with a feast at the man’s home they believe they are legally married.
“Many people think separation is a divorce, but it is not,” Phakoe said.

“We have many cases of people claiming they were divorced yet they were not,” she said.
When the affection ends or the so-called spouse died, women in such situations complain that they are being divorced or abandoned when in fact they were never legally married.
“If a man separates from his wife and gets involved with another woman, he is still married to his wife until the court legally grants a decree of divorce,” she said.
“It is wise for people to know the kind of union they are in so that whenever trouble comes, they know their rights.”

The same applies for men.
The case of prominent media figure, Sebonomoea Ramainoane and the now late ’Makleinchere Ramainoane (nee ’Mopa Phae) provides an example.
In November last year, the Court of Appeal declared their customary marriage as invalid.
Ramainoane and his in-laws were at each other’s throats over the validity of the customary marriage and whether it was the Ramainoanes or the Phaes – ’Makleinchere’s maiden family – which should be responsible for the burial arrangements.

Ramainoane told the court that in 2008 he married ’Makleinchere and regarded her as “his second house” as his “first one was constituted by his senior wife”, ’Matabane Ramainoane.
He even paid the bride price in 2012 and that same year ’Makleinchere’s father, Mohlalefi Phae conducted a traditional feast in appreciation of the “marriage”.
Trouble started when ’Makleinchere died in July 2017.
The Phaes and Ramainoanes met to plan the funeral but a few days later, Ramainoane was shocked when his in-laws reneged and “evincing a bellicose attitude” wanted him to release her death certificate to them.

The Phae family claimed Ramainoane had not legally married their daughter, saying he had not divorced his first wife ’Matabane, rendering the marriage to their daughter invalid.
Although the High Court allowed Ramainoane to bury ’Makleinchere as his wife, two years later the Court of Appeal ruled that she was not his wife.
In another prominent case, the validity of the marriage of ’Mathato Khetheng and Police constable Mokalekale Khetheng was challenged while mourning was still in progress.
’Mathato Khetheng only learnt that her in-laws did not regard her as their daughter-in-law as she prepared to bury her “husband”.

This was in August 2017, shortly after the police exhumed her “husband’s” decomposed body and she learnt of her actual status among the Khetheng family.
Her “husband” had been kidnapped in March 2016 and her in-laws did not bother to involve her in their search for him.
Even after the police discovered that Constable Khetheng had been killed and secretly buried, the family mourned separately from ’Mathato because they did not consider her as having been married to their son.

Funeral arrangements were made in her absence.
She approached the High Court claiming her right to bury the man she considered her husband. She argued that Constable Khetheng’s father and other family members did not have any rights to bury him without her involvement.

The family’s snub was despite that ’Mathato had a child with the constable, which they insisted was born out of wedlock and therefore not considered part of the Khetheng family.
’Mathato told the court that the family had initially welcomed her in the family as their daughter-in-law and Sesotho traditions were followed to seal the customary marriage contract.
Further, the Khetheng family had named the couple’s daughter in line with Sesotho tradition, she argued, adding that the clan could not have named a child who was not part of their family as per Sesotho tradition.

She even produced photos of herself clad in traditional daughter-in-law attire, with Khetheng family members present at the welcoming ceremony.
’Mathato Khetheng and Ramainoane’s cases are just a few of so-called marriages that are believed to be legal only to be regarded as invalid by families and the courts.
In his writing, Contemporary Family Law in Lesotho, former High Court judge, Justice Mathanzima Maqutu, noted that traditional ceremonies performed as part of welcoming rituals of so-called newly-wed daughters-in-law should not be regarded as the most critical in the validation of customary marriage.
To constitute such a marriage, the most critical aspects are an agreement between the marrying couple and acceptance of a bride price between the families, according to the former judge.
A perusal of many cases in Lesotho’s courts – from the customary court at local level through to the magistracy and the High Court – show that many couples think they are married when they actually are not.

In some cases, spouses are deprived of their assumed rights to bury their loved ones or deprived of the properties they would have accumulated during the subsistence of their union, with in-laws regarding such unions as invalid.
Take the case of ’Mampolokeng Sebeko of Tšenola in Maseru. She found out the hard way when her in-laws challenged her right to be the heir of the estate of her late husband who died in 2004.
In her evidence produced in court, ’Mampolokeng Sebeko claimed that she was the deceased’s legal wife, citing that they had been married according to customary tradition and never divorced.
Her estranged husband had been employed in the mines in South Africa.
She only learnt of his death when she got to the offices of the Employment Bureau of Africa Limited (TEBA). At the time of his death, he was not staying at their marital home but at a place unbeknown to her.

But TEBA produced a report showing that the beneficiary had been changed from her to her brother-in-law, Melato Sebeko.
She stated in her founding affidavit to the court that prior to the development, her husband had named her as the sole beneficiary in the event of his death since they had no children.
She attached a copy of a letter written by her husband when he was still alive in 1996 to their local chief of Tšenola.
However, in his response Melato Sebeko argued that he was the sole beneficiary of the estate since his brother “never married” ’Mampolokeng but had only cohabited with her. This made her “a mere concubine”.

Sebeko won the case after Justice Nthomeng Majara ruled that ’Mampolokeng was never married customarily to the Sebeko family.
It is a norm for many Basotho women to believe that they are married when they are accepted by their partners’ families.
Oftentimes, such women only learn of the hard truth when the husband dies and the in-laws gang up against them.

Itumeleng Khoete

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