ABSTRACT
Chapter 7 surveys a range of cases that came to the customary court from 1972 onwards. Although the tendency to send divorce cases back to the family for further discussion persists, and leads to endless delays, in recent cases the Moremi village customary court has settled for equal division of the property. Given these changes, and given that feminists themselves are increasingly uncertain whether marriage in or out of community of property is the preferable mode, the paradoxical question arises: has customary marriage, allowing for customary divorce, now become the more advantageous, preferred mode? Customary divorce is, after all, free, and can be – if customary courts follow the new interpretation of the law and do not penalise the party that sues for divorce – fast and convenient. The principle of gender equity is gradually becoming the ‘living’ norm in customary courts, as increasingly more cases are settled equitably. Our argument is that customary laws regarding property settlement in divorce have indeed changed, gradually becoming responsive to notions of equity in women’s rights in marriage, in response to a wider ideological, critical movement, despite the fact that this is not always explicitly acknowledged by chiefs or headmen presiding over customary courts.
