Articles On Law

A critique of the marriage bill

Published August 1, 2019 | By Godwills Masimirembwa

The Marriage Bill gazetted on the 19^th July 2019, aimed at harmonizing Zimbabwe’s marriage laws and aligning them to the Constitution, is a mixed bag of progress, stagnation and retrogression.

1. The Bill is progressive and is consistent with the Constitution in the following aspects:-

• It prohibits child marriages, a child being any person under the age of 18 years;
• It designates Chiefs as marriage officers in the districts in which they hold office;
• It confers equal rights and imposes equal obligations to the married parties during the subsistence, and at dissolution, of the marriage;
• It prohibits marriages of persons of the same sex;
• It prohibits marriages of persons within certain degrees of affinity or consanguinity;
• It prohibits betrothal;

2. The Bill blows both hot and cold when it comes to the legal status of an unregistered customary law marriage. It perpetuates the same discriminatory and confusing current legal position in terms of which the unregistered customary law marriage is not recognized as a marriage, but recognized as a marriage for certain purposes.

2.1 Section 2 thereof defines “marriage” as a “marriage solemnized, registered or recognized as such in terms of this Act.” This definition sets the stage for the unfair discrimination against unregistered customary law marriages in the following aspects:-

• the Bill correctly recognizes an unregistered customary law marriage as a marriage for the purpose of  countering child marriages (section 3 (2)), but does not recognize such a marriage as a marriage until it is registered (section 16);
• it terms unregistered customary law marriages “marriages” in one breath (sections 2, 16, and 46 (3) and “unregistered customary law unions” (section 16)
• it recognizes the unregistered customary law marriage as a marriage for the purpose of the status, guardianship, custody and rights of succession of the children of such marriage under customary law. This is exactly the same provision under section 3 (5) of the current Customary Marriages Act, Chapter 5:07.

The High Court has interpreted this provision to mean that children born out of this marriage are legitimate for customary law purposes only, but are illegitimate for general law purposes.

This also means that the father of such a child cannot obtain a birth certificate of the child in the absence of the mother, and neither can the mother obtain birth certificate of the child without the consent of the father.

The result of this is to deny a significant number of children their constitutional right to birth certificates, nay, even adults, because of the unavailability of both parents to register the birth of a child.

This means that the mother of a minor child who carries his/her father’s surname can, without the consent of the father, change the surname of the child and acquire a new birth certificate for the child.

 

• (i)The effect of not recognizing an unregistered customary law marriage as a marriage has disastrous consequence for the married couple. As far as the law is concerned, they are not married. They are equated to a couple living together in sin (kubika mapoto/ukuhlalisana). This is essentially what a Civil Partnership is as provided for under section 40 of the Bill. Yet the same proposed law recognizes the difference between the two by recognizing the unregistered customary law marriage as a marriage in certain circumstances (sections 2, 16 (3) and 46 (3).

(ii) So a married couple in a customary law marriage is married for the purpose of the legitimacy of the children under customary law, and for the purpose of prohibiting child marriages, but they are in a civil partnership until they register the marriage, rendering their children illegitimate under general law until such registration!

• the repeals, savings and transitional provisions (section 46 (3) provides that “parties to any unregistered customary law marriage contracted before the date of coming into operation of this Act shall secure the registration of such marriage in terms of this Act within twelve months of the date of coming into operation of this Act.” The question remains, what is the status of this marriage within those twelve months- in one breath a marriage, in another, a civil partnership?”
• the Bill proposes to repeal and amend a number of existing Acts of Parliament, but excludes the following Acts which recognize an unregistered customary law as a marriage:-
• Sections 103 and 104 of the Criminal Law (Codification And Reform) Act, [Chapter 8:07] which recognizes an unregistered customary law marriage as a marriage for the purpose of protecting a civil marriage; yet parties can enter or partake of a civil partnership as provided for under section 40 of the Bill, particularly having regard to subsection 5 thereof which provides “A civil partnership exists not withstanding that one or both of the persons are legally married to someone else or are in another civil partnership”, then it does not make sense to retain bigamy as a crime. Indeed, even the civil wrong of adultery cannot continue to be part of our law.
• The temptation to exclude the civil partnership from applying to civil marriages, but make them apply to customary law marriages should be avoided, for to do so will be unfair discrimination against customary law marriages under which civil partnership are equally frowned upon and are not valid marriages. Kubika mapoto/Ukuhlalisana is not a marriage under customary law.
• Section 68 A-F of the Administration of Estates Act, [Chapter 6:01] which recognizes an unregistered customary law marriage as a marriage for inheritance and succession purposes if the deceased died intestate is not being repealed nor amended to accommodate the civil partnership because the civil partnership is not a marriage. This is commendable. But why do we continue to have this piecemeal recognition of the unregistered customary law marriage, particularly with a new Marriage Bill where harmonization of all laws dealing with or affecting marriages is possible? Why do we continue with the colonial past of demeaning our own marriage type?
• Section 16 of the Wills Act [Chapter 6:06] which voids a testator’s Will upon the testator’s subsequent marriage does not apply to an unregistered customary law marriage because, in this instance, the Act does not recognize it as a marriage. Thus, if “A” makes a Will whilst married to “B” under a civil marriage or a registered customary law marriage, and “B” subsequently dies leading to “A” marrying “C”, the law provides that the Will made by “A” during the subsistence of his/her marriage to “B” becomes void. However, if “A”’s marriage to “C” is an unregistered customary law marriage, this at law is not a marriage and “A”s Will will remain valid. So in the event of “A”’s death without making a new Will or amending the existing Will, “C” will not benefit from the Will because he/she was not in the picture when “A” made the Will.

3.0 Whilst the designation of Chiefs as marriage officers is to be applauded, it is important to note the unfair discrimination against couples intending to marry under customary law as opposed to those who intend to marry according to Christian, Jewish, Islamic or Hindu rites or the rites or disciplines of any religion.

3.1 One of the reasons why the bulk of customary law marriages are not registered is access to registration facilities. Currently it is only Magistrates who register such marriages. They work from 8am to 4pm, breaking for lunch between 1pm- 2pm. They are also not easily accessible mainly because of distance.

3.2 Whilst section 29 (1) of the Bill provides that a marriage may be solemnized at any time, and virtually at any place approved by a marriage officer, it is only ministers of religion who have no time restrictions. Magistrates and Chiefs have time limits as they cannot be compelled “to solemnize a marriage outside the ordinary hours of attendance observed at offices of the State (section 31 (b))”. Issues of accessibility to registration facilities remain significantly constrained for those wanting to contract a registered customary law marriage.

3.3 The writer suggests that Village Heads and Headmen should also be designated marriage officers. After all they are provided for in the Constitution and are part of State administration, not only by virtue of section 280 of the Constitution, but also by virtue of the provisions of sections 5, 9 and 12 of the Traditional Leaders Act, Chapter 29:17. This will simplify and expedite the registration of customary law marriages.  

3.4 The writer also suggests that the grace period of three months within which a customary law marriage should be registered from the day it is entered into (section 16) is unnecessary if Village Heads are designated as Marriage Officers. A village on average has 300-400 families. Surely it is easy to solemnize and register marriages within a village immediately after the marriage ceremony has been completed, just as what happens with Christians, Jewish, Muslim, Hindu practices and any other religion.

The Village Head holds a village assembly/dare/inkundla once in every three months (sections 15 and 16 of Traditional Leaders Act. It is therefore easy to educate people at the grassroot level, bearing in mind always that it is the State’s responsibility to make registration of marriages easy for all marriage types.

4.0 The Marriage Bill, whilst recognizing a registered customary law marriage, fails to articulate that it should be solemnized according to customary cultural practices. Section 15 (2) provides as follows: “A marriage officer in a customary law marriage may put either of the parties to a proposed marriage or to the witnesses any questions relevant to the identity or conjugal status of the parties to the proposed marriage.” This provision is vague and does not explain the nature of impediments that may forestall a customary law marriage.

4.1 It is the writer’s view that Bill should provide guidelines which speak to the requirements of a valid customary law marriage. It is from answers to these specific questions that it is possible to establish impediments to the proposed marriage. The requirements of a valid customary law marriage are:

• the intending spouses must be of 18 years of age and above;
• they must be of the opposite sex;
• they must freely consent to enter into the marriage;
• the bridegroom must pay roora/lobola or there must be agreement on the payment of same;
• The father or in his absence, a male relative of the bride must consent to the marriage, but such consent must not be unreasonably withheld;
• The bride must be delivered to the bridegroom.

 

4.2 The writer is aware of the controversies surrounding the payment of roora/lobola and the requirement of the consent of the father or in his absence of a male relative of the bride. However, it is to be noted that this cultural practice, as pointed out in the case of Magaya vs Magaya 1999 (1) ZLR 100 (S) when the Supreme Court ruled that Katekwe vs  Muchabaiwa was wrongly decided, has nothing to do with the alleged minority status of women, but is a cultural practice, based on patriarchy.

4.3 It is also to be noted that Christians, Jews, Muslims and Hindus are permitted to solemnize marriages according to their respective religious rites and disciplines (section 10 (1)), and cannot be compelled to solemnize such marriages except in accordance with their rites (section 31 (a)). Such rites and disciplines invariably involve the handing over of the bride by the father of the bride or in his absence by a male relative, and in some religions, the payment of dowry by the bridegroom or his parent is obligatory.

4.4 Commendably, the Marriage Bill recognizes that roora/lobola is being paid even in respect of marriages contracted according to general law. Section 2 defines “marriage consideration” as “the consideration, by whatever name known at customary law, given or to be given by any person in respect of a marriage in terms of customary law or general law.”

4.5 However, section 16 (2) of the Bill contradicts this by making the payment of a marriage consideration in a customary law marriage optional. It reads “If the Registrar is satisfied that such a marriage took place, he or she shall record the identity particulars of the parties concerned, the date of the marriage and brief details of the marriage consideration, if any, which was or is to be paid in respect of the marriage, whereupon he or she shall issue the parties with a certificate of registration of a customary law marriage.”

4.6 The words “… and brief details of the marriage consideration, if any,…” clearly show that it is proposed that the payment of roora/lobola be optional. If this is accepted, then a customary law marriage would be valid without the payment of roora/lobola. If the writer’s interpretation is correct, then it would appear that other than keeping such a marriage for polygamy, there is no other cogent reason for retaining it, for there is no longer a customary law marriage to talk about, for a critical peremptory cultural requirement of the marriage would have been plucked out, leaving the cultural optional practice of  polygamy.

4.7 It must be remembered that the marriage under customary law is a family issue in which virtually every family member participates as new family ties are established. Roora/lobola is paid, people eat and merry make. It is not only the rutsambo that is paid. The mother, the aunties, the bride and her sisters all get a little something. It is not a commercial enterprise, but the birthing of a new family in the presence of the extended family. Traditional leaders know this. In fact section 5 (1) (b) of the Traditional Leaders Act, sets as one of the duties of Chiefs the duty to promote and uphold “cultural values among members of the community under his jurisdiction, particularly the preservation of the extended family and the promotion of traditional family life…”

If it is the intention of the Bill to keep the customary law marriage as one of Zimbabwe’s marriage systems, then the payment of a marriage consideration cannot be made optional. This means that the words “”… if any…” in section 16 (2) should be deleted.

THE CIVIL PARTNERSHIPS

5. Section 40, is, with respect retrogressive. In some countries civil partnerships were a precursor to gay/lesbian or same sex marriages. Yes, section 40 (1) is very clear that the relationship shall be between a man and a woman. But honestly we are loosing the high moral ground on protecting and promoting the institution of marriage as contemplated by the Constitution. And once we loose the high moral ground calls for permitting gay, lesbian or same sex marriages will grow louder, and one day, a weak or compromised executive will call for constitutional reform to permit gay, lesbian or same sex marriages, at least under the rubric of civil partnerships.

5.1 But who is being protected by this provision? Varikubika mapoto/avohlalisana/small houses/concubines. Customary law does not recognize such arrangements as lawful. General Law (unless this Bill becomes law) does not recognize concubines or small houses.

5.2 Thus a polygamous marriage under customary law means the man has lawfully married the women. If he has not, and is living with the women, his family, society and customary law does not recognize the arrangement. Equally in the Christian, Jewish, Islamic, Hindu or the generality of other religions, it is an abomination.

5.3 It is the writer’s view that section 40 is unconstitutional as it is inconsistent with Section 16 of the Constitution which enjoins the State and all institutions and agencies of government at every level to “promote and preserve cultural values and practices which enhance the dignity, well-being and equality of Zimbabweans”.

5.4 It is contrary to section 25 of the Constitution which enjoins the State and all institutions and agencies of government at every level to “protect and foster the institution of the family…” Section 40 is telling those in monogamous marriages that the law does not protect your marriage from concubines, mistresses and small houses- so forget about monogamy, let alone adultery damages!

5.5 It compromises the integrity of section 282 of the Constitution which enjoins traditional leaders to promote and uphold the cultural values of their communities, and in particular, to promote sound family values.” Section 40 tells them that there is nothing wrong with kubika mapoto/ukuhlalisana -in fact it is a new type of marriage as it is recognized as such for on its dissolution, the provisions of the Matrimonial Causes Act, [Chapter 5:13] apply. It is ironic that lives in partners who never intended to get married now have a “marriage” foisted on them by the State contrary to the provisions of section 78 of the Constitution. On the other hand a married couple in an unregistered customary law marriage continue to be regarded as being in a union, not a marriage

5.6 It is the writer’s view that section 40 (the civil partnership provision) is a threat to the institution of marriage and must be dropped from the proposed Marriages Act.

In conclusion the writer is of the considered view that the Marriage Bill should be withdrawn to avoid the current mess in Zimbabwe’s marriage laws degenerating into a tailspin. Non-controversial amendments such as those affecting the age of entering into marriage, designating other ministers of religion, village heads, headmen and chiefs as marriage officers, with the requirement that customary law marriages be solemnized and registered in accordance with cultural practices after completion of the marriage ceremony, that unregistered customary law marriages be registered within twelve months of the coming into operation of the Act, but that they be immediately recognized as valid marriages for the twelve months, should be made through the introduction of a revised Marriage Bill. 

By Godwills Masimirembwa

Lecturer

Zimbabwe Institute of Legal Studies

Contact details: 0772515641; 0777878934; [email protected]