New Act Unifies All Marriage Laws

The new Marriages Act became law on Friday, a piece of legislation that brings all marriage laws together, makes all marriages equal and finally provides a way to transform a registered customary union into a civil marriage, while making it clear that child marriages are totally banned with those arranging or solemnising such marriages facing five years in jail.

The Act had a rough passage through Parliament over the issue of lobola, which will now for practical purposes need to be paid in solemnised customary unions where the district custom has this, but possibly not in unregistered customary unions that are later registered without solemnisation.

But eventually a formula for lobola was found, the Act passed both Houses and has been assented to by President Mnangagwa and gazetted as law on Friday last week.

Lobola has never been a factor in civil law and church law marriages and such marriages remain a valid option for anyone not wanting to pay lobola

All marriages in Zimbabwe are now equal, with a single register of marriages maintained by a single Registrar of Marriages. But there are distinct differences between civil marriages and customary marriages, the main one being that a customary marriage is potentially polygamous with different ways of solemnising these marriages.

Besides the two types of marriage, there is a civil partnership. This is the informal living together of a couple in a genuine domestic basis but without any marriage whatsoever.

This determines the rights and obligations of the couple, and especially the new Act makes it clear, 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.

In all marriages and civil partnerships, both partners have to be aged 18 or over and there has to be explicit agreement by both partners. Underage 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.

The Act goes into some detail on marriages and potential marriages or near marriages to ensure that the age and active consent rules apply in anything that vaguely resembles a marriage.

The partners in all marriages whatsoever have equal rights and obligations both during the subsistence of the marriage and at any dissolution. This is being backed by amendments to the Child Protection Act which will make it clear that both parents have equal rights when it comes to children. This journey to full legal equality has taken some time in almost all cultures.

While there is no change, except the age limit, in the law governing civil law marriages, the law on registering or solemnising customary unions has undergone a major revision so that these are now solemnised by magistrates or the local chief, rather than the district administrators, and a monogamous couple in a customary marriage can convert this into a civil marriage if they wish, pulling down the colonial brick wall between the two types of marriages.

Even unregistered customary unions, a very common way of getting married in Zimbabwe, now have to be registered within three months of the creation of the union if the couple does not wish to go through the solemnisation process before a magistrate or chief.

Failure to register the union though does not affect the validity of the marriage at customary law with regard to the status, guardianship, custody and succession rights of children of the union.

The main result of all these changes should see major practical and conceptual changes in how Zimbabweans get married. In colonial times people were locked into either a customary marriage, that had to be registered at the office of the native or district commissioner, or the civil law marriage, registered when the marriage ceremony took place.

After independence, most couples actually wanted to be married under both customary law and civil law. Because of the rigid divide, the custom grew up of having a customary marriage first, but not registering this, and then having the civil law marriage later, but registering that one.

Now even unregistered customary unions have to be registered, although they should be solemnised before a magistrate or a chief, but those in a monogamous customary marriage can later contract a civil law marriage, and so people can now have the double ceremonies under the two types of marriage laws.

While magistrates are automatically marriage officers, chiefs become marriage officers for customary marriages in the district where they hold office and, as at present, ministers of religion can be licensed to be marriage officers for civil law marriages, where the law is very similar to most church laws so there is no conflict.

But still, people can now be married under the customary law of their community, the civil law of Zimbabwe and the canon law of their religion.

The opportunity was taken to repeal the clause in the Criminal Law Code that criminalised the deliberate transmission of HIV, whether in or out of marriage. Parliament was told that this went against modern practice. In any case the clause has hardly ever, if ever, been applied.

There was protracted debate on a clause on lobola that kept the Bill in Parliament for two years as Justice, legal and Parliamentary Affairs Minister Ziyambi Ziyambi disagreed with traditional leaders led by Council of Chiefs president Fortune Charumbira.

The Government wanted couples to have the option, and Minister Ziyambi argued that lobola could not be used as a barrier for two consenting adults to a union as that would violate their constitutional right to association. But the chiefs felt it was fundamental to the nature of a customary marriage.

After intense debate and holding of meetings outside Parliament to narrow differences, the formula chosen was to give the marriage officer solemnising a customary marriage the responsibility of asking, among other questions, those relevant to the agreement relating to marriage consideration (lobola or roora), if any .

While the phrase if any does not make lobola compulsory in itself, a later paragraph demands that the solemnising marriage officer must be satisfied that customary law formalities have been met , and as chiefs see lobola as a customary law formality that means they can insist it is paid.

However, when an unregistered customary union that is not solemnised is registered, the Registrar has to record the details of the marriage consideration, if any but does not have to go further so possibly in this case it will not be compulsory.

Traditional leaders will also have to go through training in solemnising customary marriages, but the Act demands that within four months all sitting chiefs must be licensed to perform these ceremonies and future chiefs must be licensed within four months of taking office.

Ministers of religion can be licensed to be marriage officers for civil law marriages, where the law is very similar to most church laws so there is no conflict. But still, people can now be married under the customary law of their community, the civil law of Zimbabwe and the canon law of their religion.

Much of the Act repeats the details in the previous legislation over notification, banns and the like. The section on how closely related the couple can be follows the revision in the criminal law for other intimate relations.

As well as banning anyone from marrying an ancestor or descendant, or the sibling of themselves, their parents, grandparents, children and grandchildren, it also barred marriage between first and second cousins, which was new. However, such close cousins can be legally married if they both belong to cultures that permit such marriages.

The Act repeals the old Marriages Act, which governed civil law marriages, and the Customary Marriages Act, and also makes minor modifications to other laws. For example in clause 53, the ban on under 18 marriages also sees a little used section of law repealed which stated that those under 18 who were married achieved their majority on marriage. As no one can now be married under 18, the section is not needed. Herald