Yea or Nay: A Quick Analysis of the Draft Marriages Bill of 2018

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 the 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 the Bill.

One of the most important 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 with 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 Marriage which has a holistic approach in dealing with eradicating child marriages.

The Bill reconciles all marriage laws into one bill. It names two types of marriage 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 marriage? 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 with respect to the status, guardianship, custody and the rights of succession of the children of such marriage.’

The Marriage 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 many 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 the 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 court gives guidelines but 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.

Source: Caroline Kache, Women and Law in Southern Africa – Zimbabwe