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| Title: | Divorce law in Lesotho: a critical appraisal of the 'guilt principle' and the present grounds for divorce |
| Author: | Mamashela, Mothokoa P. |
| Year: | 1991 |
| Periodical: | Lesotho Law Journal: A Journal of Law and Development (ISSN 0255-6472) |
| Volume: | 7 |
| Issue: | 1 |
| Pages: | 21-48 |
| Language: | English |
| Notes: | biblio. refs. |
| Geographic terms: | Lesotho Southern Africa |
| Subjects: | divorce Law, Legal Issues, and Human Rights Marital Relations and Nuptiality law Common law marriage |
| Abstract: | Lesotho common law of divorce is based on the doctrine of matrimonial offence, the guilt principle. The rationale behind this doctrine is that the sanctity of the institution of marriage should be safeguarded and preserved. Some jurisdictions which have practised this doctrine have realized with time that it does not in any way discourage divorce. This paper critically analyses the guilt principle and the present grounds for divorce under Lesotho common law. It is divided into five parts. The first part describes how Roman-Dutch law was introduced into Lesotho. The second part gives a short survey of the history of divorce and the views of the old Roman-Dutch law authorities on the subject. The third part deals concurrently with the present Lesotho divorce laws and those of South Africa before 1979. The fourth part criticizes the Lesotho divorce laws and suggests ways in which they could be changed/reformed. The fifth part looks at the shortcomings of the irretrievable breakdown of marriage principle as practised by other jurisdictions. If Lesotho adopted the irretrievable breakdown of marriage principle, it would be following the general trend of making divorce easy. In order to avoid the mistakes of other jurisdictions which have adopted this principle, the law should be changed in such a way as to suit local needs. Notes, ref. |