Yea or nay : a quick analysis of the Marriages Bill 2017

For the last couple of weeks, a lot has been said about the upcoming Marriages Bill, from minimum of age of consent to marriage, to the decriminalization of transmission of HIV, among other concerns. There has been heated public debate on the implications of the Bill, but surprisingly, most people not having read the actual Bill. This short analysis looks at some of the important clauses in that Bill.

One of the most import aspects of the Bill is that it sets the minimum age of marriage as 18 years. It reconciles all the contradictions in our laws and complies with the 2016 Constitutional court case of Mudzuru & Tsopodzi vs
Minister of Justice, Legal & Parliamentary Affairs N
.O; Minister of Women’s Affairs, Gender & Community Development & Attorney General of Zimbabwe which outlawed child marriage. It also criminalizes the participation of any person in a child marriage. This means that all players, from the tete, to munyai or any person who participates in such a marriage is guilty of an offense. The law sets the bar high and this clause will go a long way in dealing with child marriages. However, it must be noted that the issues of child marriages go beyond just the  minimum age of consent. A lot of issues will have to be dealt with, as is done by the SADC Model Law on Eradicating Child Marriage and Protecting Children Already in Marriagewhich has a holistic approach in dealing with eradicating child marriages.

The Bill reconciles all marriage laws into one bill. It names two types of marriages ie civil marriage which is monogamous and customary marriage which is subject to the customary law of the people concerned. The Bill seeks to create equality of all marriages and states that all parties have equal rights and obligations. This is a marked  difference from the current regime which seems to create a hierarchy of civil marriage 5:11, registered customary marriage 5:07 and Unregistered Customary Law Union at the bottom. However, the bill also outlines that persons in a ‘registered customary law marriage in which the husband has no other existing spouse may convert their marriage to a civil marriage.’ This clause may be regarded as bringing back the hierarchy of marriages as the use of the word ‘convert’ seems to imply that. Why does one need to convert if there is already equality of marriages? While this may mean that the parties would want to enter into a monogamous relationship, the clause may be misconstrued to mean civil marriages are better.

One of the challenges of the current marriages is that marriage officers are few and not accessible to all. The Bill adds chiefs as marriage officers, which is a step in the right direction to ensure more people register their marriages. However, one wonders how accessible the chiefs are in some of the areas. For instance, a person does not approach the chief’s court empty handed but needs a goat or cash. It is not clear if there will be an exception when it comes to marriages as some people cannot afford that. In addition, how geographically accessible are chiefs? Are they within walking distance to most of their people or does this mean the general populace still needs to commute to be able to see their chief?

Most marriages in Zimbabwe are unregistered customary law unions. The Bill provides for these marriages to be registered and provides for one to register their marriage within three months. Furthermore, there is provision for further guidelines regarding the documentation required for marriage registration to be put in place.  It will be important to note how these will impact  the actual registration of the marriage. The Bill also provides that, ‘Failure to register a marriage contracted at customary law does not affect the validity of the
marriage at customary law with respect to the status, guardianship, custody and the rights of succession of the children of such marriage.’

The Marriages Bill adds a new category known as civil partnerships. These are defined as two people over 18 who have lived together but are not legally married. They are also known as common law marriages and where parties have been together for a while, they are deemed to be married. This covers people who are cohabiting or as they are called in Shona, kuchaya mapoto. The general comments clarify that they are not recognized as marriages but the new Bill seeks to ‘realize justice between the parties to the relationship in terms of the Matrimonial Causes Act upon the dissolution of the relationship’. This adequately protects women who have been treated unfairly by families because they were not legally married but lived with the man for years. In determining if such a relationship existed, the Bill considers several factors like duration of the relationship, common residence, if there was a sexual relationship, degree of financial dependency, care and support, reputation and public aspects of the relationship.

However, the Bill also makes it clear that the above factors may not be necessary to prove a civil partnership existed and adds that a court will have discretion to add more requirements. In my view, this makes the criteria to decide such a matter vague and gives the court too much leeway, which can be problematic. The fact that the Bill gives guidelines but also adds that these may not be necessary, makes the matter difficult and gives the judicial officer too much room to make a decision. The guidelines must be wide and assist the officer in making a decision rather than giving the judicial officer the decision to not follow those guidelines.

The most problematic clause in the Bill is S40(5) which states that, ‘A civil partnership exists notwithstanding that one or both of the persons are legally married to someone else or are in another civil partnership.’ In this regard the Bill essentially states that people who opt to have a civil marriage may also be in a civil partnership and will therefore have obligations arising from both unions. Essentially, this means that if Mary and Joseph are in a civil marriage and at some point, Joseph has a civil partnership with Jessie for a while but later terminates it after, say 5 years. Jessie is entitled to claim maintenance and division of property for that duration. While the clause tries to protect Jessie, it may also prejudice Mary who is a wife in a ‘monogamous’ marriage. In trying to protect a woman in a civil partnership, it also violates the rights of the woman in the marriage who may find herself with obligations arising from the husband’s infidelity. Maintenance to Jessie comes at a family cost which Mary will also contribute to.  This clause may mean different things to different people. To some, it
protects Jessie while to others it violates Mary’s marriage rights. However, it may also be viewed as making Joseph  take responsibility for his actions. However, one wonders if this does not violate the sanctity of marriage and whether this clause will not be subjected to abuse in some instances? In addition, what is the impact of this on inheritance and adultery laws? It remains to be seen.

The Bill provides an opportunity to harmonize our marriage laws, but it could also potentially open a pandora’s box if the issues in the foregoing paragraphs are not adequately dealt with. For many people marriage remains a sacred institution and failing to recognize it that way may mean we throw away the baby with the bathwater.

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