South Sudanese Dinka Customary Law in Comparison with Australian Family Law: Legal Implications for Dinka Families

Abstract

Customary laws are considered to be social norms that have become recognised through a shared understanding of rights and obligations. Essentially, these laws are not recognised by a legal body but rather are constructed informally, through customary practice. Therefore, their implications are not constitutionalised but are instead imposed through loss of reputation and status, rather than by virtue of fundamental requirements of the law. In South Sudan, marriage, divorce and child custody are not in a sphere of institutional control, by either church or state. This article aims to compare the legal system of Australian family law with South Sudanese Dinka customary law, highlighting the implications faced by the Dinka community with respect to marriage, divorce and child custody in Australia. In particular, this article will explore marriage in Dinka customary law as compared to marriage in Australian family law system; discuss divorce in Dinka customary law in comparison with divorce in the Australian family law system; and examine the differences with regard to child custody. This article argues that the differences between the Australian family legal system and the South Sudanese Dinka customary legal system present challenges and difficulties for both sides in terms of: the concept of marriage; the validity of marriage; approaches to divorce; and child custody.

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