SIWO V SIWO (1970) Z.R. 79 (H.C.)

Facts

The petitioner and the respondent decided to get married. A lobola price (i.e. bridal price) of K120 was paid to that effect and the marriage was solemnised in a Church. At that point no question of a customary marriage arose. They were solemnised by a licensed minister but a marriage certificate was not issued nor did the parties know that it was a requirement. However, the parties signed a certificate that referred to the Marriage Ordinance in the presence of two witnesses. The respondent contended that the Marriage was a customary marriage and that he never wanted a statutory marriage and that he thought it was customary marriage.

Issue

Was the Marriage valid given the fact that at the time of its solemnisation, a marriage certificate was not issued?

Held

The court held that the petitioner did not know that a marriage certificate from the Registrar was necessary or that one could be obtained. Furthermore, Doyle CJ also found that the Petitioner’s attitude was that she wished to be married in church, her parents also wished it and she thought that such a marriage was a valid marriage. She thought that it was only necessary to arrange the marriage with the Minister and that this complied with the law. She at no time contemplated a customary marriage. Section 32 (2) of the Marriage Ordinance states that if both parties knowingly and willingly enter into a marriage with no Registrar’s certificate or licence, that marriage is void. It equally follows that if one of the parties is ignorant, or both parties are ignorant of this omission, then the marriage is valid.

Commentary

See also Section 27 of the Matrimonial Causes Act No. 20 of 2007 which discusses the grounds to which a marriage could be void. Also in Greaves v Greaves 1872 LR 2 P. & D. 423, Lord Penzance had the following to say, ‘The parties in this case did not doubt intermarry without a licence first had and obtained; but the question is, whether they did so knowingly and wilfully. I understand the meaning of this provision to be that the marriage is only to be annulled if it is established affirmatively to the satisfaction of the Court, that at the time when the ceremony was solemnised both parties were cognizant of the fact that a licence had not been issued, and being cognizant of that fact  wilfully intermarried…’

By using the statutory rule of interpretation of expressio unius est exclusio alterius (which means to mention a class of things, automatically excludes other things which are not mentioned i.e. the statute mentioned ‘knowingly and willingly’ this means that ‘everything’[well not everything, but you get the point] done ‘unknowingly and unwillingly’ may possibly be legal ) we can see how Doyle CJ came to this conclusion.

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