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Custody Disputes Under African Customary Family Law in Malawi

Adaptability to Change

Bibliographic Data

ID12583190
AuthorsLea Mwambene (University of the Western Cape, corresponding author)
Year2012
Volume26
Issue2
Pages127-142
Publication date2012-06-26
Open AccessNo
TypeARTICLE
VenueInternational Journal of Law Policy and the Family (JOURNAL)
Journal identifiersISSN: 1360-9939 • E-ISSN: 1464-3707
PublisherOxford University Press (OUP) (PUBLISHER)
DOI10.1093/lawfam/ebs004
OpenAlexW2017986981
LanguageEN
Citations received4
References cited2

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

Argument (complex analysis · Clan · Constitution · Family law · Obligation · Political science · Sociology · Conflict of Laws and Jurisdiction · International Human Rights and Reproductive Law · Legal Issues in South Africa · Medicine · Law

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Citations per year0.36
Citation span2015 - 2018 (4)
Highly citedNo

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