In modern times, divorce is becoming increasingly a norm in most communities that were historically known to shun the practice. African tradition was known to detest any form of divorce. However it is now common to find as single parents to either divorce or separation.
Divorce has been described as the dissolution or ending of a marriage. Divorce is different from the annulment of a marriage which is according to experts in divorce law, declaring marriage null and void.
Though it is widely known that divorce is very common in developed countries more than developing countries, divorce is gaining a lot of currency in the developing world with the Great Lakes Region being unexceptional.
This has often been attributed to a wide range of reasons among them, the increasing influence of Western culture.
A divorce to become effective has to be sanctioned by a legally accepted body. This implies that for a separation to be legally confirmed as divorce, it must be certified by a court of law.
This is so because according to legal experts, the previous act of marriage is legally binding as a contract. So for such to be terminated, another legal act must be carried out. That makes and requires that divorce is a legal action.
The Rwandan family Code according to the works of Charles Ntampaka, an expert on family law was adopted in 1988. The adoption of the family law aimed at ending the dual legal framework that governed the family unit in Rwanda.
Originally the rules governing the family in Rwanda were drawn from the Belgian system. So the endeavour was to adopt a unified system.
Article 98 of the constitution holds that “Customary law remains in force only to the extent that it has not been superseded by legislation and that it contains nothing that is contrary to the constitution, to legislation, to regulations, to public order or to public decency”. Ntampaka adds that family law is drawn both from legislative and customary sources.
Tradition and Civil Code
In Rwandan tradition and culture, the family is a group linked by blood relationship. People in the family at one point are known to have shared a common ancestor.
The family in Rwandan culture was recognised from the male side. It was essentially patrilineal. Relatives of the wives of the male members of the family were excluded from the family.
This equally is the case with descendants of the female members. They were excluded. As such, males were free to marry several women and this ensured that divorce was unheard of.
In case a man was dissatisfied with the wife, he would in most cases marry another woman on top of the one he was already married to. Traditional law marriage in Rwanda can not be dissolved.
A marriage is traditionally seen as an alliance of two families which are seen to represent two lineages. In case of any misunderstandings, the family elders would first try to reconcile the partners.
If this was not possible then that is when a second marriage would be allowed. Any separation that would come up would have to be agreed upon by the families. This is to ensure that family relations are not harmed in any negative sense.
However, the Civil Code in Rwanda clearly lays down the grounds for divorce. These are: if one of the spouses is at fault, one spouse is absent for twelve months, separation lasting up to three years or mutual consent between the spouses.
The Code thus separates issues of divorce from the rest of the extended family. It becomes a matter between the spouses.
The Code also demands that the spouses upon divorce by mutual agreement must hand over half of their assets to their children.
Customarily children belong to the father’s side. On divorce the mother could only retain very young children. These could also be handed over to the father once they are weaned from the mother.
In contrast, Code stipulates that children go to the innocent spouse. The Code also tries to put the best interests of the children into consideration.
The parent with the capacity to educate the children is normally the one to take custody of the children. The parent who can guarantee their education better is more likely to take custody.
However Ntampaka has argued that this is rarely the case. He contends that this issue is rarely brought up in court and children most often than not are handed over to the father. It is still a reflection of traditional culture which does not accept children in the mother’s family.
Church and divorce
Divorce in church particularly the Catholic Church is a very sensitive issue. The reality of divorce and its consequences is often avoided in Catholics. This apparently is derived from the teachings of Jesus Christ.
“And the Pharisees came up to him and tested him by asking, “is it lawful to divorce ones wife for any cause?”
He answered, “have you not read that he who made them from the beginning made them male and female and said, “ For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one.?”
So they are no longer two but one. What therefore God has put together let no man put asunder”. They said to him, “then why did Moses command one to give a certificate of divorce?” he said to them.
“For your hardness of heart, Moses allowed you to divorce your wives, but from the beginning it was not so. And I say to you; whoever divorces his wife, except for unchastity, and marries commits adultery. And he who marries a divorced woman commits adultery too.”
The church views marriage as a union made by God and therefore can not be broken using human yardsticks. However in modern times as people are exposed to television and different cultures, divorce is easily sought and granted. Most people are no longer bound by church and other religious teachings.
Divorce and Islam
The Muslim’s perspective on divorce is synonymous with the Arab culture. In Islam, marriage is seen to be ordained by God. In the ideal situation, marriage is supposed to foster harmony, love and compassion in the Muslim world.
However unlike other religions, it does provide mechanisms for divorce for either party to a marriage union. In Islam, God provides general guidelines for the formalisation of divorce for either party and emphasises the need for up holding justice and kindness.
This is contained in Surah: 2; 224-237. God calls upon and encourages the husband and wife to appoint an arbitrator as the first step to aid reconciliation in the process of divorce.
In case the reconciliation process fails, the husband and wife are free to go a head and secure a divorce. The divorce initiated by the wife is known as khu” (if the husband is not at fault) and entails the wife giving back her dowry to end the marriage because she is the “contract” breaker or dissolver.
In the instance of ‘talaq’ where the husband is the contract breaker, he must pay the dowry fully in cases where all or part of it was deferred.
In the case that the husband is at fault and the woman is interested in divorce, she can petition for divorce, with a genuine cause.
She would be required to offer proof that her husband had not fulfilled his responsibilities. The judge would make that determination based on the facts of the case and the law of the land.
If the woman had specified certain conditions in her marriage contract, which were not met by the husband, she could obtain a conditional divorce.
When a man wants a divorce, he can pronounce a divorce in writing or by word of mouth. Once this is done, there is a waiting period of three months (iddat). During this period the two remain living under one roof but there are no sexual relations allowed.
The waiting period is aimed at the avoiding hasty decisions made out of anger and to determine whether the woman is pregnant or not. If the wife is pregnant, the waiting period is lengthened until she delivers.
At any point during this period, the couple is free to resume the relationship if they so wish. Also the man is still financially responsible to the welfare of the woman.
The common controversy with divorce in the Muslim communities lies in the fact that men appear to have absolute power in divorce.
Muslim scholars have for a long time interpreted the divorce process in such a way that the reconciliation process is omitted if the man is the initiator of the divorce process.
This according to experts in Muslim affairs is a divergence from the Quranic teachings. From the Muslim point of view in regard to divorce, it is apparent that the man has more powers in issues to do with divorce.
It is clear that the Qur’an states there is a degree of difference with regards to the rights of men and women while crisis, but it is not clear how much and what privileges a man is entitled to.
This is what has been interpreted by the jurists. It should also be noted if the difference is due in part to the man being the financial supporter, then it must follow that if the woman shares or is the main financial contributor to the family that this privilege should apply to her as well.
Lay man perspective
Jean Marie Niyonzima, a financial consultant with Hwan sung in Kigali says that from the social point of view, divorce is not good.
However he is quick to add that as our society develops socially, divorce is definitely on the rise because it is a trend in the developed countries and with globalisation, African cultures are eluded into adopting such decisions like divorce that normally affect or have affected the children most.
In developed countries he says that people can afford to divorce and adopt children or remarry. “If you are economically okay or have the means, the kids will not face economic hardships upon divorce,” say Niyonzima.
Adding, that with the advent of AIDS, divorce is a solution where by one spouse is not faithful. “I would rather divorce than risk getting HIV/Aids”.
He further believes that the churches teaching on divorce is wrong and cannot stand in the face of problems affecting modern families. The church should be flexible enough to seal a bitter marriage with a divorce.