15/04/2024
CERTIFICATION AND REGISTRATION OF MARRIAGES POST
SEPTEMBER 2022
A few days ago, Zimbabweans woke up to a circular from the Law Society of Zimbabwe and communication from the Civil Registry notifying couples that people who had entered into marriages after September 2022 using the new Marriages Act [Chapter 5:15], that had their marriage certificates had cited the old Marriages Act [Chapter 5:11] instead of the new Marriages Act [Chapter 5:15]. clerical error on their marriage certificates which reflected on the face of it , the old marriages act [ Chapter 5:11 ].
The effect of this clerical error miscitation was that, the newly weds were in fact in invalid marriages. The ripple effect of this clerical error miscitation is simple, the Parties who thought they are wedded are in fact unmarried and perhaps simply co-habiting in the eyes of the law.
Legal Practitioners were none the wiser as they headed to court on instructions of their newly wed clients who had decided to divorce. The courts refused to nullify marriages which, in their learned view, were not solemnized correctly. Therefore, before divorce proceedings could commence, the citation of the Marriages Act [Chapter 5:11] had to be amended by the Registrar of Marriages and the civil registry to read Marriages Act [Chapter 5:15] (Appended by a Pen),
The Government acceded to the requests from various stakeholders to amend the Marriages Act [Chapter 5:11] and after lobbying and consultations a new Marriages Act [Chapter 5:15] was promulgated and came into effect. But perhaps let’s take a step back and venture into why the law changed from the old marriages act that gave us a 5:11 to a 5:15. The new act aim was sought to consolidate laws relating to marriages, ensure ing all that all marriages have equal rights and obligations and as well as aligning with the Constitution of the Republic of Zimbabwe.
What this means is the new dispensation of marriages in Section 3 of the new Marriages Act [Chapter 5:15] corrected the misalignment that had existed that had resulted in a conflict with the Constitution whereby a person under the age of 18years could enter into a marriage. This has since been outlawed, a person under the age of 18 cannot enter into a marriage, putting to rest the scourge of child marriages.
Further, those who wedded in terms of Customary Law are obligated to register the union within a period of 3 months, and those that existed before the enactment of the Marriages Act [Chapter 5:15] stipulates that same law should be registered within 12 months. The Parties in a customary marriage may now convert their marriage into a civil marriage and which by nature is unconditionally monogamous.
Civil Partnerships are the highlight of the new Marriages Act [Chapter 5:15], the Parties in this partnership are not married, but it focuses on the protection of property rights. In such a set up, it is possible for a Civil Partnership to subsist were one of the parties is married in a monogamous relationship with another. An example would be Mr X, while married to Mrs X, is in a civil partnership with Miss Y.
Lastly, another new highlight in the new Marriages Act [Chapter 5:15] transitioning from the old Marriages Act decriminalises transmission of HIV from one spouse to another. has been decriminalised, This has the effect of repealing Section 79 of the Criminal Law Code, which made it a crime. This therefore means that it is no longer a crime.
Now back to the issue of what becomes of the newly weds who contracted their marriages during the period under discussion? under 5:11 erroneously. What must happen now? Well, if you find yourself having been married post September 2022, in possession of a Marriage Certificate with a wrong citation that is 5:11 instead of 5:15, the affected persons through their legal practitioners of the affected parties must go have to attend at to the the Registrar of Marriages offices. The Registrar who will, by hand, append the correct citation which is Act to Chapter 5:15 and stamp such alterarions. the marriage certificate. This will bring the marriage to legitimate status.
The Ministry of Justice has indicated that it will soon bring out will now bring in a Statutory Instrument that will correct this error, and bring the matter to finality. This should ought to bring comfort to parties currently labouring in marriages citated as having been solemnised under the old Marriages Act [Chapter 5:11] (which no longer exists).
The burning question that then arises is whether if one has a Marriage Certificate which cites Chapter 5:11 instead of Chapter 5:15, is that marriage valid and is one married in terms of the old have asked whether they are then married but under the old 5:11 marriage. The answer is NO. Chapter 5:11 is the past and was repealed and replaced by Chapter 5:15 therefore Chapter 5:11 no longer exists. It was the learned Judge Lord Denning who said and I quote;
“ You cannot put something on nothing and expect it to stand ”
One cannot therefore expect not put a marriage a marriage contracted under Chapter 5:15 but miscited as having been contracted under on Chapter 5:11 and expect it to stand at law, because it is something put on nothing.
In conclusion, the most immediate remedy for parties who wish to divorce and have a divorce order granted or to correct the error miscitation for their comfort in a subsisting marriage is to approach the civil registry Registrar of Marriages and have their marriage certificates amended :BY PEN and stamped.
Munya Midzi
Attorney at Law
Chasi Maguwudze Legal Practice
