Family law in Africa: 5 things you should know

1. What is family law? 

Family laws govern family structures and relationships and play a crucial role in shaping the lives of women and girls. In Africa’s diverse and dynamic context, family laws encompass a wide range of legal provisions, customs, and practices that govern matters such as marriage, divorce, inheritance, child custody, and property rights.

The landscape of family laws in Africa is rich and complex, influenced by a myriad of factors, including historical legacies, colonial influences, and evolving social dynamics. While family laws vary across countries and regions, they often reflect the broader social norms, power structures, and gender dynamics prevalent within African societies.

2. How did Africa’s family laws evolve? 

Historically, many African societies had intricate systems of customary laws that governed family relations and property rights. These customary laws were deeply rooted in the cultural fabric of each community, providing guidelines for marriage, inheritance, and dispute resolution. The introduction of European legal systems and religion resulted in a blend of customary, religious, and statutory laws that still shape legislation and practice through legal pluralism.

The continent is home to diverse ethnic, linguistic, and religious communities, each with its own unique family law systems. Civil law, religious law (such as Islamic law or Christian canon law), and customary law coexist, sometimes overlapping or conflicting, creating complex challenges for legal harmonization and reform efforts.

The dynamics of family structures in Africa have undergone significant transformations in recent decades. Urbanization, globalization, and the influence of modern values have brought about changes in marriage patterns, divorce rates, and the roles and responsibilities of family members. These shifts have prompted a critical examination of existing family laws and the need for reforms that reflect gender equality and the evolving needs and realities of African societies.

3. Where is there discrimination in family law? 

Our new report, ‘Gender Inequality In Family Laws In Africa: An Overview Of Key Trends In Select Countries, ’ assesses the status of family laws in 20 focus African countries, based on nine broad family law themes: legal pluralism; child marriage; registration and legal recognition of marriages; polygamy; gender-based violence within the family (marital rape and domestic violence); divorce; child custody; matrimonial property; and inheritance.

A review of 20 African countries was undertaken, covering all regions of the African continent. We have used the African Union’s categorization of regions in the identification of countries. The countries have been chosen based on geographical and language considerations to ensure that the Report covers as many determinants as possible. The countries selected are anglophone, francophone, Arab-speaking, and lusophone.

For example, there are key gaps in family laws in Tanzania. These include unequal inheritance and matrimonial property rights, lack of regulation of violence against women, non-criminalization of marital rape, and the existence of laws allowing marriage below 18 years. 

In Angola, the Family Code is based on civil and customary laws. Customary laws should, however, not contradict the Constitution. Inequality in family laws exists in Angola in the following aspects: there are exceptions to the legal age of marriage; there are discriminatory customary inheritance laws, and polygamy also exists in parts of the country.

4. How does discrimination in family law impact women and girls in Africa? 

As part of our analysis, we spoke to women across the continent who were impacted by inequality in family law, including discrimination in divorce, child custody, and child marriage. Thandi* was forced into marriage at 14 years old by her grandmother following the death of both her parents. She left school and became pregnant at a young age. 

“Watching my friends continue with their schooling while I grappled with the challenges of marriage has left lasting scars…Being a parent at such a young age, I couldn’t play with my friends or enjoy some good banter. Sometimes, I would watch them come from school from my grass-thatched house veranda and cry. The struggles of child marriage are still vivid: the beatings, the lost opportunities, and the hunger – my husband would often beat me senselessly, and I would go to bed without food often.” 

In Malawi, an estimated 38% of girls are married before reaching 18 years of age, and 7% are married before their 15th birthday. Before 2017, Section 22 of the Constitution allowed marriage of children between the ages of 15 and 18 with the consent of parents and guardians. In 2017, two years after adopting the Constitutional Amendment Act, Parliament amended the Constitution to make 18 the absolute minimum age of marriage without exceptions. In Thandi’s case, while she was married after the reform, child marriage continued to be a practice despite the law prohibiting it. The government needs to be vigilant in enforcing these laws, with community awareness being a critical component of law enforcement.

“I didn’t know the law could protect me against child marriage as I was not aware of the legal instruments available. I have since learned that child marriage is illegal after I encountered a lady working for a community-based organization who informed me about the criminalization of child marriage in Malawi. She also encouraged me to be a voice for change and to educate our community about the dangers of child marriage. I firmly believe that everyone in Malawi, including children, should know the risks and consequences of such practices.”

*Not her real name 

5. What needs to change?

Family law equality must be at the heart of the future we want. An integrated, prosperous, and peaceful Africa cannot be actualized if discriminatory family laws remain in the statutory codes of African Union Member States.

Reform is needed to address exceptions to 18 as the minimum age of marriage; non-criminalization of marital rape; recognition of polygamy without protections for women; retrogressive jurisprudence on the distribution of matrimonial property, disproportionate restrictions on the rights to inheritance; rights of widows, and unequal divorce regimes; lack of recognition of same-sex marriage even in contexts where same-sex relationships are decriminalized.

Member States of the African Union should standardize their family codes. While it is important to recognize religious laws, many of the provisions are discriminatory against women and girls. Hence, such provisions must be aligned with regional and international standards to protect all women and girls.

For gender equality in family law in Africa to become a reality, key human rights treaties must be universally ratified and implemented, specifically the Maputo Protocol and the African Charter on the Rights and Welfare of the Child. Reservations on CEDAW and the Maputo Protocol must also be lifted unconditionally.

If all women and girls are guaranteed the same rights within the family as their fathers, sons, brothers, and husbands — whether nearby or across the world — we will be safer, more prosperous, and more secure.

Equality Now works with partners around the world to address discrimination in family law.  We are a founding Coordination Committee Member and the secretariat of the Global Campaign for Equality in Family Law, co-convenors of the Africa Family Law Network, and currently the secretariat of the Hurra Coalition, which is working to address unequal family laws in the MENA region.