Written by Andiswa Chabvepi ( LLB (Hons) (SA), CSR Manager)
After many months of being a hot topic in the society, the Marriages Act finally became law on the 16th of September 2022. The Act was however passed on the 27th of May 2022, it is only its operation that was delayed. The New Marriages Act has been the talk of the town even before it was promulgated into law. People had so much interest into it and the cause for the interest is undoubtedly the fact that it brought about a complete shift to the way our marriage regime laws are aligned. The new Act introduced far-reaching transformation to the Zimbabwean Marriages Law regime. Before the coming of the Marriages Act, marriages were administered under basically two sets of laws, which are the Marriage Act (Chapter 5:11), formerly known as the Marriage Act (Chapter 37), the Customary Marriages Act (Chapter 5:07). The law paid a blind eye to civil partnerships, more commonly referred to as “small houses” and unregistered customary law unions.
The Marriages Act has however codified and hurdled together all the different types of marriages under one legal document and repealed the Marriage Act (Chapter 5:11) and the Customary Marriages Act (Chapter 5:07). The major changes that were brought by the Marriages Act is the recognition of civil partnerships, unregistered customary law unions and qualified marriages as marriages. The foregoing triad was not recognized as marriages before. Prior to this Act, civil marriages were considered superior and handled differently upon divorce. With the Act consolidating laws relating to marriages, all marriages are now treated equally, allowing parties in other marriages to acquire more rights to property sharing. It goes without mentioning however, that the property regime is still out of community of property and the law has not been shifted in so far as that is concerned.
Unlike its predecessors, the new law recognizes civil partnerships, which are not marriages but recognized only for property sharing. A civil partnership is a relationship between a man and woman older than the age of 18 who live together on a genuine domestic basis without any marriage. In other words, a civil partnership is where two consenting adults who are romantically involved cohabit and they are not married. The partnership can co-exist with any other marriage, including a civil union. Upon dissolution of the marriage, the matrimonial Causes Act can now be employed to determine who owns what. In the past, the Matrimonial Causes Act was only reserved for civil marriages.
Section 41(6) states that by virtue of the partners dissolving their civil partnership, neither of them shall be deemed to be guilty of bigamy contrary to section 104 of the Criminal Law Code if either of them is legally married to someone else. Unless specifically repealed or removed from the law, the remedy to sue for adultery damages will continue to exist for people who have a civil marriage which is monogamous. Adultery will be considered a crime if a person decides to marry another person while they are still married.
In terms of section 6 of the new Marriages Act, parties to any marriage have equal rights and obligations during the subsistence of the marriage and when the marriage is terminated. The Act provides that any property or assets acquired during the partnership will be distributed in the same way that property is distributed when a married couple divorces, using the same law. The law on divorce applies to all types of marriages including civil partnerships, but does not apply to unregistered customary law unions.
Parties were not considered to be married at law under customary law marriages. Women were disadvantaged in most unions upon the death of a husband or dissolution of the marriage, as very little could be experienced in terms of property rights. However, solemnization of the customary marriage has been made a lot more significant, with both traditional chiefs and magistrates now being the marriage officers, showing the equality of both the civil marriage and customary marriage. Ministers of religion can also be appointed honorary officers for civil marriages.
Under the new Act a couple in a registered customary marriage can convert this into a civil marriage. The marriage officer solemnizing a customary marriage has the responsibility of asking, among other questions, if lobola was paid. Couples who want to get married with the exception of paying lobola have the option of a civil marriage, where there is no such requirement and the Act does not require a marriage officer to enquire about lobola payment. A couple with an unregistered customary union has the option of using the legal provision of just registering the union rather than appearing before a chief or magistrate.
Amongst the types of marriages now recognized at law, there is what is called a qualified marriage. A qualified marriage is a union contracted according to religious rites which is not registrable as civil or customary marriage and is potentially polygamous. The other types of marriages are a civil marriage which is monogamous and a registered customary marriage which is potentially polygamous and done according to customary rites. Unregistered customary law unions are not recognized marriages. However, failure to register does not invalidate the union, guardianship, custody and the rights of children in such a marriage.
Other than the changes highlighted above, the Marriages Act outlaws child marriages by setting a minimum age of 18 for marriages and criminalizes anyone involved in child marriage. Under-age marriages and forced marriages see those involved, except the child or the forced partner, facing criminal charges and jail terms of up to five years.
(This article is provided for informational purposes only and not for the purpose of providing legal advice.)
