A draft law governing persons and families, which seeks to address issues including the management of spouses' assets and unpaid care work in case of divorce, is pending approval by parliament.
The bill consists of a merger of draft amendments of the law of 2016 governing persons and families as amended to date, and the law of 2016 governing matrimonial regimes, donations, and successions.
According to an explanatory note of the bill, the reason behind this merger is that both laws are interconnected; you cannot use one without referring to the other.
Here are 10 key proposed changes in the bill that are aimed at solving the identified issues that were observed during the implementation of the existing laws, according to the Ministry of Gender and Family Promotion.
1. Deterring short marriages with the sole purpose of property gains
As per the explanatory note of the bill, during the last five years, courts received complaints during divorce proceedings that one of the spouses targeted properties. Complaints were logged on issues of equal sharing of property as the result of divorce -- with some suggesting that property is not partitioned equally between partners when it is ascertained that one of them entered into marriage with the sole aim of gaining property from the other.
To deal with this issue of short marriages -- which are defined as unions whose divorce occurs before five years of cohabitation -- the draft law proposes that "upon request of one of the spouses, the court may order the spouses not to equally share the assets and liabilities after examining reasons of the request."
2. Addressing the sale or donation of movable properties without both spouses' consent
Some spouses living under the community of property regimes, or the limited community of property regime, make donations or sales of certain personal property (automobiles, shares, among others) without the consent of their spouse, as per the bill.
This, it indicated, leads to abuse in the management of common property and incessant disputes among married couples.
The draft law proposes that assets registered in the name of one of the spouses are part of the property belonging to spouses under the community of property regime.
"The property shall not be sold, given in liberality or be disposed of without both spouses' agreement," the explanatory of the bill reads in part.
3. Valuing unpaid care work through compensation
The bill points out that unpaid care work which consists of non-market and unpaid activities carried out in households by one of the spouses (such as caring for elderly people and children, fetching water, and cooking, among others), is not taken into consideration as part or contributing to the household's wealth in case of divorce, yet if those activities were done by a third party, he or she would be paid.
This draft law provides that if one of the spouses makes complaints about sharing property during divorce, the judge must take into account the value of unpaid care work performed by one or both of the spouses.
It proposed that the value of unpaid care work shall be between 10 and 39 per cent of the property acquired from the day of their marriage.
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4. Facilitating prospective spouses with disabilities to express their marriage vows
The draft law recommends that a civil registrar may request the institution in charge of people with disabilities to appoint a person with special skills to assist an intending spouse with a disability -- who cannot express himself or herself during marriage vows, due to hearing impairment, a speech impediment, or visual impairment, and those with special needs, when necessary.
5. Authorisation to get married before the age of 21 -- from the age of 18
In the justification of the bill, it was indicated that during consultations, it was proposed to review the marriageable age to 18 years as, at that age, the person has the right to have sexual relations but cannot legally get married.
In Rwandan legislation, the age of sexual consent, or majority is 18.
This draft law proposes that a person with the age of majority but who has not yet attained marriageable age may apply to a civil registrar at the district level, for reasonable grounds, for the authorisation to get married.
6. Prohibiting public announcement of the matrimonial regimes
It has been observed that when the civil registrar pronounces in public the matrimonial regime chosen by the spouses, the public present at the ceremony shouts when the regime is not the community of property. This provokes stigma in some spouses.
The draft law provides that the prospective spouses shall register their matrimonial regimes seven days before the celebration [of civil marriage] and prohibits the civil registrar from announcing publicly the chosen matrimonial regimes.
7. Conciliation of spouses to be done by family council, not judges
Currently, conciliation sessions are done in three months or more, where the judge listens to spouses contemplating divorce and tries to conciliate them, according to the explanatory note of the bill.
However, it indicated that it was proven that this long procedure does not bear the expected results (giving an instance where only two of 27 divorce cases logged at Kicukiro Primary Court were successful -- in terms of conciliation).
As such, the draft law shifted the conciliation power to the family council, providing that a ministerial order determines responsibilities, organisation, and functioning of the family council.
8. Spouses can choose another matrimonial regime -- different from the three existing ones
There are three existing types of matrimonial regimes, however, these types do not give the prospective spouses a choice to design their own regime as is the case in all contracts.
The current regimes are community of property, which is a contract by which the spouses opt for joint ownership of all their property; limited community of property whereby partners share everything they build up from their wedding day; and separation of property which means complete separation of spouses' respective assets, without any equalisation of accrued gains when their marriage ends.
In a bid to address the issue, the draft law proposes that intending spouses may choose or design another matrimonial regime in case the matrimonial regime is not contrary to the rules of public order and good morals. The civil registrar will analyse it before the celebration of the marriage.
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9. Intending spouses might not be obliged to hold the flag during marriage celebration
In the explanatory note of the bill, the government pointed out that the marriage vow between spouses is a vow of love and caring for each other. Holding the flag does not mean sticking to that vow as it was observed that some divorces occur even before marriage marks the first anniversary, it added.
For the civil registrar, it is a representation of the authority who has observed all requirements for the celebration of that marriage.
In this draft law, only the civil registrar will hold the flag while reading the oath.
10. A private will must be notarised for authenticity
There are conflicts and contestations among heirs after the death of the testator on the authenticity of the will privately made by him/her -- some of them accusing others of forgery or alteration which sometimes leads to lawsuits, according to the Ministry of Gender and Family Promotion.
Considering the number of private notaries around the country, and government ones, the draft law proposes that the testator must make his or her will in an authentic form to avoid forgery by heirs.
Article 367 (proposed) of the bill provides that an authentic will is the one made by the testator before a notary or a civil registrar of the testator's place of residence or domicile.
