J. N. D. Anderson - Family Law in Asia and Africa

Volume 2

Family Law in Asia and Africa

First published in 1968 by George Allen & Unwin Ltd

This edition first published in 2022

by Routledge

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1968 George Allen & Unwin Ltd

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British Library Cataloguing in Publication Data

A catalogue record for this book is available from the British Library

ISBN: 978-1-03-215171-7 (Set)

ISBN: 978-1-00-324754-8 (Set) (ebk)

ISBN: 978-1-03-215260-8 (Volume 2) (hbk)

ISBN: 978-1-03-215273-8 (Volume 2) (pbk)

ISBN: 978-1-00-324339-7 (Volume 2) (ebk)

DOI: 10.4324/9781003243397

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first published in 1968

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PRINTED IN GREAT BRITAIN

in 11 on 12 point Fournier type

BY SIMSON SHAND LTD

LONDON, HERTFORD AND HARLOW

TO ALAN GLEDHILL

m.a. (Cantab.), ll.d. (Lond.)

Indian Civil Service, 192046

Judge, High Court at Rangoon, 19468

School of Oriental and African Studies, 194866

Professor of Oriental Laws in the University of London, 195563

This volume represents a collaborative work by members of the Department of Law at the School of Oriental and African Studies, together with a number of distinguished visitors. It is based on a series of lectures under the same general title given during the academic year 1965/6. The lectures given by Haji Ahmad Ibrahim (then Attorney-General of Singapore) and by Professor Falk (of the Hebrew University of Jerusalem) were University Lectures given at the School of Oriental and African Studies under the auspices of the Board of Studies in Laws of the University of London. The remainder were lectures directly sponsored by the School of Oriental and African Studies, some of them given by distinguished guests (Professor Freedman, of the London School of Economics, Professor Hahlo, of the University of Witwatersrand, Professor Irani, then of the University of Bombay, and Professor Rocher, of the Free University of Brussels), and others by members of the Department of Law at the School.

The arrangement of the papers has been based on their subject matter rather than on the geographical area to which they refer, because the major interest of a work such as this probably lies in the basis it provides for comparative study.

The theme of the first group of papers is marriage, divorce and matrimonial causes. In the first two Mr Cotran and Dr Morris discuss respectively the changing nature of African marriage and attempted reforms in the law of marriage in Uganda. Then the focus of interest moves to the Far East, with Professor Freedman describing the rout of custom in Chinese family law in Singapore, and Mr McAleavy certain aspects of marriage and divorce in Communist China. Finally, Professor Rocher concerns himself with India, and describes the theory of matrimonial causes according to the Dharmastra.

The next section is concerned with family property and the law of succession. Under this heading Professor Allott discusses family property in West Africa, Professor Hahlo the matrimonial regimes of South Africa, Professor Derrett family arrangements in developing countries, Haji Ahmad Ibrahim the law of matrimonial property among Muslims in Malaysia and Singapore, and Professor Gledhill community of property in the marriage law of Burma.

The last section is somewhat more general in character. I have taken as my subject the eclipse of the patriarchal family in contemporary Islamic law; Professor Falk has contributed a paper on religious law and the modern family in Israel; Mr Rubin has discussed contemporary family law in Southern Africa; and Professor Irani has examined the juristic basis and content of the family law of the Parsis in India.

No attempt has been made radically to change the style of these lectures as they were given, since it was felt that any resulting gain would be more than matched by a corresponding loss.

I am indebted to my colleagues, Mr Henry McAleavy and Mr Eugene Cotran, for assistance in arranging these lectures and in preparing the material for publication.

J. N. D. ANDERSON

Eugene Cotran

Lecturer in African Law School of Oriental and African Studies

Marriage was defined in the old English case of Hyde v. Hyde1 as the voluntary union for life of one man and one woman to the exclusion of all others.

Now it has rightly been observed2 that almost every single word of this Christian definition of marriage is inapplicable to marriages contracted under the traditional African customary law. It is argued, first, that in many African societies marriage was not a voluntary union, especially as far as brides were concerned; secondly, that the union was not for life since it might be easily dissolved without the intervention of a court; thirdly, that the marriage was not so much a union between a man and a woman, as an alliance between two family groups; and finally, that far from being a union to the exclusion of all others, all customary marriages were potentially polygamous.

So much for the negative aspects. What of the positive ones? Can one define marriage under African customary law? I shall certainly not enter into the old controversy here of whether marriage should be regarded as a status, an institution, a contract, a religious bond or purely a civil engagement. Nor shall I be as bold and ambitious as some writers who have tried to define marriage, not only to cover customary law, but also to cover marriage as recognized all over the world. Indeed, I would say that it is impossible to put forward a definition which would cover marriage as recognized and known under the multitude of African customary laws, differing and conflicting as they do in such material respects as their political and social structure, kinship groupings, descent systems, economic way of life and so on.

On the other hand, I think it is possible, despite this diversity, to trace some broad uniformity in certain basic principles, and to show that African customary marriages, as compared with European Christian marriages, have certain distinguishing features and characteristics.