08/07/2019
THE MARRIAGE BILL
FAQs
1.What is the purpose of The Marriage bill?
- The purpose of the bill is to repeal the Customary Marriages Act (Cap 5;07) and the Marriage Act (cap 5;11). What this means is that there will be one ACT or law rather, which will govern different marriages in Zimbabwe.
- This bill is guided by the following principles: supremacy of the constitution, gender equality, the best interests of the child
2. Is the bill bringing in anything new?
-Yes, the bill does bring in several new aspects as listed below:
1. There is now only one law that governs different types of marriages, in Zimbabwe. However, you can still choose the type of marriage you wish to enter into, that this the monogamous marriage or the potentially polygamous marriage.
2. No type of marriage is regarded as superior than the other. Previously, the monogamous marriage known by most people as Chapter 27 was regarded as the most superior, entitling the woman to a share of the acquired matrimonial property upon divorce. Now all the types of marriages are equal, and wives under any type of marriage are entitled to a share of the acquired matrimonial property and they have the same rights as their spouses.
3. Clause 48 amends the Children’s Act. A child is no longer interpreted at law as someone under the age of 16 but 18
4. Consent to marriage – a marriage can no longer be solemnized without free and full consent of the 2 parties entering into the marriage.
5. Clause 40 – Civil partnerships
-Civil partnerships- If a woman and a man both aged over 18, without legally married have lived together on a genuine domestic basis, upon dissolution of their relationship, the law wilI now consider them to have been “married” ONLY for the following purposes:
-sharing matrimonial property.
-claiming maintenance for the spouse or children (if any)
- determining custody of children if any
In doing so, the court will look at several circumstances
1. The duration of the relationship
2. Did a sexual relationship exist?
3. The care and support of children
4. Financial independence
5. Ownership, use and how the property was acquired (bought)
Is this a good thing?
We need to understand that there is a law called the Matrimonial Causes Act (CHAPTER 5:13) This law provides for sharing of property between spouses upon dissolution of marriage. However, it does not recognize unregistered customary law unions and civil partnerships as marriages. Meaning that women in these unions cannot benefit from this law. What this means is that if a woman has been married traditionally, lobola paid and traditional ceremonies held, then she goes to live with her husband, without registering the marriage in the marriage register at court, even if they live together as husband and wife for 20years, in the eyes of the general law they are not married!
Therefore, in terms of the Matrimonial Causes Act, that woman would not benefit any property or claim maintenance at the dissolution of the marriage. In other words, she would walk away empty handed, unless if she successfully sought relief under unjust enrichment etc, which was very difficult to prove before a court of law. Now, this new law we are discussing today was therefore drafted with a view to address this anomaly and to do justices between spouses. It addresses the injustices that were presented by the Matrimonial Causes Act. In terms of this newly proposed law, women can now claim share of the property and also maintenance even if their marriages were not registered.
? What happens if for example, my husband whom I’m legally married to in terms of chapter 5;11 becomes involved in a civil partnership for a year with another woman outside our marriage?
-Clause 40 of the marriage bill and the section 7-11 Matrimonial Causes Act will apply. This means that upon dissolution of the relationship, either party is entitled to the property that they acquired together during the subsistence of the relationship. Either spouse can also claim maintenance. In making the order, the court will consider the circumstances outlined above. However, the only property to be distributed is that which they acquired together in their matrimonial home, as “husband and wife”. They do not go on to touch properties acquired in the other matrimonial home.
? Does this mean that even if a person is married in terms of the “Chapter 27” they can now marry as many spouses as they want?
NO. The law has not changed in that aspect. The monogamous marriage remains a monogamous marriage, which means 1 wife 1 husband. No other marriage can be entered into by a person during the subsistence of the monogamous marriage. If they enter into another marriage while the monogamous marriage subsists, the second marriage will be illegal. However, where a married party has been involved in a civil partnership (remember we have already defined a civil partnership) the law will turn a blind eye, ONLY for the purposes of property sharing , custody of children, maintenance. Nothing more.
? If we now have one Act governing marriages in Zimbabwe, does this mean I can no longer choose the type of marriage I want to enter into? Does it also mean that we no longer need to register marriages?
No. you can still choose whether you want a monogamous marriage or a potentially polygamous. However, whether you choose the monogamous or potentially polygamous marriage, it must be registered with the marriage officer. Chiefs now also have the power to act as marriage officers to register the potentially polygamous customary law marriages.
This Marriage bill and the Constitution
1. The Marriage bill gives all marriages an equal status in line with section 56 of the Constitution, which guarantees the right of equality non-discrimination on the basis of marital status. No type of marriage is superior than the other.
2. The marriage bill in fulfillment of section 80 (3) of the Constitution also does away with the cultural practice that asserts that customarily women are not entitled to property ownership. All parties now have equal rights and obligations during the subsistence, and at dissolution of the marriage.
3. The Marriage bill is aligned with s81 of the Constitution which defines a child as a boy or girl under the age of 18, and prohibits marriage of children.
4. The Marriage bill also prohibits pledging of persons into marriage by ensuring that every person who enters into marriage must have given his or her full consent.
