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English - African Commission on Human and Peoples' Rights

English - African Commission on Human and Peoples' Rights

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1.15 STEPS TAKEN TO PROTECT FAMILY COHESIONThe C<strong>on</strong>stituti<strong>on</strong> provides for the right to respect for private <strong>and</strong> family life. Secti<strong>on</strong> 1 to(the C<strong>on</strong>stituti<strong>on</strong> reads thus:-(1) Every pers<strong>on</strong> shall be entitled to respect for his private <strong>and</strong> family life <strong>and</strong> hishome.(2) Nothing c<strong>on</strong>tained in or d<strong>on</strong>e under the authority of any law shall be held to beinc<strong>on</strong>sistent with or in c<strong>on</strong>traventi<strong>on</strong> of this secti<strong>on</strong> to the extent that the law inquesti<strong>on</strong> makes provisi<strong>on</strong>.(a) in the interest of defence, public safety, public order, public morality or publichealth, or(b) for the purpose of protecting the rights <strong>and</strong> freedoms of other pers<strong>on</strong>s.(3) A pers<strong>on</strong> shall not be permitted to rely in any judicial proceedings up<strong>on</strong> such aprovisi<strong>on</strong> of law as is referred to in subsecti<strong>on</strong> (2) except to the extent to which hesatisfies the court that, that provisi<strong>on</strong>, or as the case may be, the thing d<strong>on</strong>e underthe authority thereof does not abridge the rights guaranteed by secti<strong>on</strong> (1) to agreater extent than is necessary in a practical sense in a democratic society in theinterests of any of the matters specified in subsecti<strong>on</strong> 2 (a) or for purpose specifiedin subsecti<strong>on</strong> 2 (b).The marnitge Act No. 10 of 1974 provides in the preamble that the Act is intended tomake pros is i<strong>on</strong> for the solemnizati<strong>on</strong> <strong>and</strong> registrati<strong>on</strong> of marriages, thus protecting theinstituti<strong>on</strong> of the family that result from such marriage.Secti<strong>on</strong> 3 of the act provides that no pers<strong>on</strong> may be compelled to enter into a c<strong>on</strong>tract ofmarriage with any other pers<strong>on</strong> or to marry against his wish.Presently under both the comm<strong>on</strong> law <strong>and</strong> customary law, up<strong>on</strong> marriage in communityof property, the husb<strong>and</strong> acquires marital power over the pers<strong>on</strong> <strong>and</strong> property of his wi<strong>and</strong> the wife thus becomes a minor under the guardianship of her husb<strong>and</strong>. This is notthe case, where marriage is proceeded by an ante nuptial c<strong>on</strong>tract, where the maritalpower of the husb<strong>and</strong> is excluded. The husb<strong>and</strong> has full c<strong>on</strong>tractual capacity <strong>and</strong> canbind the joint estate with his c<strong>on</strong>tracts. The wife can <strong>on</strong>ly enter into c<strong>on</strong>tracts with thec<strong>on</strong>sent of her husb<strong>and</strong>. The wife's limited c<strong>on</strong>tractual capacity extends to <strong>on</strong> lyhousehold necessaries.2

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