The proposed Marriages Bill, 2017 seeks to harmonise marriage laws in Zimbabwe and bring the governance of marriages under a single Act.
It also seeks to align the law with the provisions of the Constitution. The Bill has not yet been gazetted and, it is assumed the draft Bill is available for discussion. This note will briefly examine the Bill in relation to existing law and the impetus for law reform, and analyse whether it achieves meaningful change and betterment.
The current position
There are currently two formal marriage systems which coexist in Zimbabwe, the customary law marriage and the civil marriage. What is referred to as customary law is the system that was in place prior colonisation applying to indigenous people in Zimbabwe.
That system did not require any type of registration for the marriage to be recognised and valid. During the colonial era, a registration requirement for customary marriages was introduced. Unregistered customary law marriages also exist, but are not governed by or recognised under the marriage laws.
The laws regulating significant aspects of the different marriage regimes are contained in several pieces of legislation namely, the Marriage Act(Chapter 5.11), which governs civil marriages, Customary Marriages Act (Chapter 5.07), covering customary law marriage, Married Persons Property Act, detailing the marital property regime, Matrimonial Causes Act, regulating property distribution, maintenance and other issues upon dissolution of marriage; the Customary Law and Local Courts Act, which has provisions regulating customary law applying to marriage (e.g. polygamy and dissolution of unregistered customary law marriages), the Administration of Estates Act, which governs succession upon death of spouses, and modifies certain aspects of marriage laws relating to deceased estates subject to customary law; the Criminal Law (Codification and Reform) Act which defines and imposes penalties for prohibited marriage (including bigamy) and the Domestic Violence Act, which penalises forced marriage and pledging of girls into marriage.
The above-detailed laws together in varying degrees contain what is regarded as the marriage law of Zimbabwe, although the main legislation is the Marriage Act and the Customary Marriages Act.
The case for law reform
Zimbabwe has signed and ratified the Convention on the Elimination of all forms of Discrimination against Women (CEDAW), the African Charter on Human and People's Rights and its Women's Protocol and therefore has agreed to:
Take measures to eliminate discrimination against women in marriage at its inception, during the marriage and at its dissolution
Prohibit and eliminate child marriage
Prohibit and eliminate harmful cultural practices and forced marriages
Zimbabwe, as a member of SADC, has also endorsed and promoted the SADC Model Law on eradicating child marriage that has model provisions on the prohibition and elimination of child marriage and the protection of children already in marriages.
The CEDAW Committee in its Concluding Observations to Zimbabwe's State Report in 2012, with relation to family and marriage, made recommendations to the Government to amend marriage laws in order to eliminate discrimination and ensure equitable sharing of matrimonial property by women.
The Constitution of Zimbabwe has aligned with its international obligations in this respect by the provisions on marriage, the rights of women and in the Bill of Rights. Section 56 of the Constitution provides for the right to equality before the law and non-discrimination on, among other things, the basis of sex, gender, marital status, class and economic or social status.
Section 78 gives "marriage rights", which are the right to found a family from the age of 18 years and the right not to be compelled into marriage. Section 80 elaborates on women's rights and provides that any law or practice that infringes on women's rights shall be void.
The protection of the family and marriage are values and principles governing State policy, in terms of Chapter 2 of the Constitution. The State is obliged in terms of Section 26 of the Constitution to take measures to ensure that marriages are entered into with the free and full consent of the parties, that no children are pledged in marriage, that there is equality of rights and obligations within marriage and protection of spouses and children upon dissolution.
A case for law reform in Zimbabwean marriage laws exists because of the effects of the differential marriage systems arising from the application of the dual law system, where customary law co-exists with general law.
The effects of these differences may be detrimental to equality and lead to gender inequalities or perpetuation of gender and class disparities when the two systems intersect and lead to inconsistencies.
There is a clarion call for law reform arising from a number of these issues including lack of gender equality, the lack of clear prohibition of child marriages and the lack of a harmonised system that would clearly outline the law.
Discussion on specific issues
How far does the proposed law go in addressing the mischief? In relation to the topical issues as indicated above, the Marriage Bill will bring some important changes to marriage law in Zimbabwe. It is debatable, however, as to how far these changes go in addressing the mischief.
The clear stipulation of a minimum age of marriage for all marriages, including recognised civil unions, is commendable and effectively outlaws child marriage, without exception. The clear penalty stipulations are welcome as well, in that it also makes knowledge of the law accessible and contained in one law, as opposed to the scattered provisions in other statutes like the Criminal Code and the Domestic Violence Act.
However, as highlighted above, it may be necessary to have more comprehensive provisions addressing the issues and implications of child marriage as outlined in the Model Law, if not in the marriage laws, perhaps in other specific legislation.
Validity of marriage and registration
A positive introduction is the existence of a central marriage registry for all marriages, both civil and customary. However, the objections procedure outlined in Section 27 of the Bill excludes unregistered customary law unions.
It is assumed, although not clearly outlined, that perhaps an objection in this case could be laid to the registration of such marriage.
The major bone of contention as far as validity and the effect of registration of the marriage is concerned, is between the UCLU and the registered marriage. The UCLU and the customary law marriage have the same origins, being marriages between "Africans" conducted in accordance with custom, but have different status.
The justification for the differentiation is not clear. The Bill maintains the position, with the addition of validity of the UCLU by registration after customary rites. The UCLU remains invalid under general law, and therefore cannot benefit from protective general law provisions.
The Maputo Protocol and CEDAW encourage compulsory marriage registration for the protection of women, and that is perhaps the motivation. The effect, however, is not to protect women, but further entrench their marginalisation because of their lived realities. The majority of marriages in the country are unregistered.
Registration is either a class issue or affected by unequal power relations. The reality is that most marriages originate with customary rituals like lobola, and either get "upgraded" into civil marriages, or registered customary law marriages. Because of the perceived protections that registration gives women (for property distribution), men tend to be reluctant to register their customary marriages.
The possibility of maintaining validity of customary law unions whilst encouraging registration of such marriages should be seriously pursued, perhaps through a vigorous consultative process, and also with regard to foreign law, like the case in South Africa, where customary law marriages are recognised as valid despite not being registered. Registration is encouraged for purposes of proof.
The law reforms are quite broad and cover a number of areas. This report is not exhaustive, but highlights some of the issues.
Harmonisation of marriage laws
The Bill seeks to harmonise marriage laws, and it achieves this to some degree by containing all the relevant types of marriages, stipulating the nature and formalities required and general implications. It also contains many of the provisions found in other laws, like the criminal sanctions for bigamy, forced marriage, pledging etc.
There are, however, important elements that are still contained in other laws, like the marital property regime (the Married Persons Property Act), divorce provisions and property distribution (Matrimonial Causes Act) and distribution of matrimonial property upon death (the Deceased Estates Succession Act and the Administration of Estates Act.
A more comprehensive review of all the different elements of marriage law in Zimbabwe and extensive public consultation should result in proper harmonisation, such that marriage law becomes clear and unambiguous.
Property rights and matrimonial property
The issues highlighted above, where property rights as conferred by title trump marriage rights in terms of the law, have not been addressed at all by the Bill. This would require a more comprehensive overhaul of the law. Considering that this is a topical issue for the rights of women, and what the public, and the courts have been making clarion calls about for the past decades, it is not clear why this area has been left untouched.
It is not likely, given the time it has taken for action on marriage law reform, that a separate process to review matrimonial property rights will be instituted expeditiously. It is recommended that the current process be broadened, with public consultation and participation, to consider all the relevant aspects of marriage in Zimbabwe in order to achieve true equality in marriage.
The draft Marriage Bill, in its current state contains some positive aspects like clear prohibition of child marriage, some harmonisation of marriage laws and the creation of a centralised marriage registry.
However, there are some aspects that require consultation, revision and refining, like the provisions on civil partnerships, the state of unregistered customary law unions and matrimonial property rights.
It is hoped that since the draft Bill has not yet been gazetted, there is room for the necessary changes, and that the Government is willing to consult widely and involve stakeholders in coming up with a law that truly addresses issues and results in positive change to the lives of the disadvantaged.
Tambudzai Gonese-Manjonjo is a lawyer at the Southern Africa Litigation Centre (SALC)