What constitutes a marriage in Lesotho? 

Firstly, let me mention that Lesotho has a dual legal system. This means that Lesotho has Customary Law and Roman-Dutch legal systems. Each legal system has its own marital regime. Under customary law, there is customary law marriage and under the Roman-Dutch law, there is civil law marriage. 

To say that TKay is legally married under customary law marriage the following three requirements should be met.

• Firstly, there must be an agreement between two families. The family of the bachelor should agree that their son is marrying, and the bachelorette’s family should agree that their daughter is getting married by the bachelor. 
• Secondly, there must be an agreement between the potential spouses. They shouldn’t be forced, like it used to happen back then. They must consent. 
• And thirdly, there must be a dowry agreement, but I want to emphasise this one. We are not saying that it’s a requirement for ‘bohali’ or dowry to be paid (it may even be paid 100 years later) for the marriage to be legally binding. 

Under Roman-Dutch law, these are the requirements for a civil law marriage.

• It’s not mandatory to have parental consent. You can literally walk down the aisle whether the parents are happy or not. Absolutely without their blessings. I am not encouraging anyone to do that. But it’s a requirement.
• You should be 21 years and older. If you are between the ages of 16 and 20 then you need parental consent because, under the Roman Dutch law, you are not yet a major.
• Another requirement before getting married, the couple needs to agree that they are getting married, where one party should not force him/herself onto the other partner. 
• It is also a requirement for the bachelor and the bachelorette to be single. Meaning that you can’t get married under civil law marriage if you are already someone’s spouse. This is a crime, and you will get arrested. 

Does our law allow polygamy or cohabitation? 

What an interesting question. Let me first start with the polygamy question. Well, under civil marriage polygamy is completely prohibited. And as a matter of fact, it is called bigamy and has been criminalised by the Penal Code Act of 2010. If you marry two wives under Roman-Dutch Law, I can guarantee you nothing but jail time. Under Customary Law, you can marry as many wives as you want.

As far as cohabitation is concerned, unfortunately, both the Roman-Dutch and the Customary Laws do not recognise cohabitation. This means that cohabiting partners do have any legal protection. In South Africa, however, there was a case which was decided in 2012 where they recognised cohabitation. Unfortunately, this is not the case in Lesotho, but I have a feeling Lesotho will eventually take this direction as it adopts several precedents from the South African jurisdiction.

Let me use an example. 

Say you and I get married under civil law marriage and you don’t know that I have a husband somewhere in New Zealand. Suppose I die and while you are busy claiming my insurance policies, someone tells you that your marriage is invalid, because at the time we got married, I had a lawfully wedded husband who is entitled to all the things you are claiming. You can, however, go plead universal partnership and tell the courts that you did not know I was married at the time.