By Tariro Senderayi
The lobbying stage for the Marriages Bill has not been an easy one due to gross misinformation and mob thinking that has superseded reason.
This misinformation has set tongues wagging all for the wrong reasons making a case for the need for clarity which will go a long way in bringing sanity and breathing life to the brilliance exhibited by the drafters of the Bill.
This Marriages Bill comes at a time when critical marital related issues that range from maintenance, custody, inheritance, divorce, property sharing, DNA testing among many others have been regulated by sporadic pieces of law and this is one area that makes the Bill appear to be that cloud with a silver lining.
There is no doubt if proper lobbying, clarifications and explanations are done for the benefit of the general populace, they will appreciate what the Bill is seeking to address.
In fact, in some quarters, this heavily criticised Marriages Bill is actually being hailed as one of the most progressive pieces of legislation to date with regards to marital issues.
This Marriages Bill even in its current form empowers women and children like never before and deserves to be given a chance to prove its worth and value, but this can only happen when the general populace has read through its provisions and understood them for what they are.
A lot of people have spoken from an uninformed position [link] hence the speculations, accusations and misinformation currently doing rounds on social media and even in some churches that have attempted to unpack the Bill on their own.
Firstly, this Bill is attempting to be a one-stop-shop by consolidating the Marriage Act [Chapter 5:11] and the Customary Marriages Act [Chapter 5:07] into one comprehensive law governing marriages in Zimbabwe.
The Bill also deals with issues of family i.e. inheritance, maintenance, custody, property sharing and marriage validation among others which were generally scattered around.
One of the issues that the Marriages Bill is doing is to advocate for equality of rights and obligations of spouses during the marriage and at dissolution which also includes dissolution due to the death of the other spouse.
The Marriages Bill is also seen to be ascertaining the age of majority (18 years) as the age of marriage in Section 3. Thus, early child marriages are being abolished together with cultural practises such as pledging of children in marriage.
Another commendable attribute of the Marriages Bill is that it seems to be trying to align all marriage laws to the constitution which provides for gender equality.
The Bill empowers women and children such that it provides for the equality and non-discrimination of women with regards to spousal rights and obligations during the marriage, at divorce or separation and at the death of a spouse.
One of the ways women are empowered as above stated is that those who were in unregistered customary unions have been given recognition of the status of that union. Before the advent of the Bill unregistered customary unions (which were not recognised as marriages) mostly proved to be problematic upon the death of the spouse.
It resulted in many women not being accorded widow status and treated as though the marriage did not exist. Her position was equated to that of a woman “anga achichaya mapoto” despite “lobola” having been paid for her.
This woman was left out in the cold unlike the women in the civil marriage (Chapter 5:11) and the registered customary marriage were they stood a fair chance of inheriting the matrimonial home.
Hence, the unregistered customary union’s status is elevated via the Bill such that if you are a woman married customarily but did not solemnise that union that does not negate from the fact that there was an intention to get married. Therefore, women who have not solemnised or registered their marriages will now be protected at law.
There have been harsh labels that used to be attached to children born outside of a valid marriage. Some would term them “vana vemusango” others would call them “illegitimate children”, some would call them “children born out of wedlock” or “bastards”. These labels now fall away because such children now stand a fair chance of inheriting from their father’s estate upon death despite him being married in the civil marriage or registered customary marriage.
The law is the highest custodian of the rights of minor children and it must be purposively crafted in a manner that safeguards the best interests of the child. This Bill deals with the issue adequately.
With this Bill traditional Chiefs have been empowered to register customary marriages. They become marriage officers.
With regards to the controversial civil partnerships in Section 40, their purposive interpretation is that they must be regarded only to determine the rights and obligations of the parties upon dissolution of the union or marriage.
The other purpose of defining civil partnerships is to facilitate the sharing of property in terms of Section 7 to Section 11 of the Matrimonial Causes Act. However, this does not extend to cases of inheritance.
Section 40 seeks to protect couples who are seen to be living together without a marriage but the outside world views them as a couple. The key characteristics here for this arrangement to be deemed a civil partnership is that this couple is ‘living together domestically.
The bone of contention was clarifying the position of the ‘other woman’. It is not a civil partnership if either party carries on an affair with another party but the arrangement is devoid of the domestic living together element. Such arrangements without the living together part fall short so as to qualify as civil partnerships.
Hence, to clarify things further, one night stands, flings and fly by night engagements do not qualify as forms of civil partnerships because Section 40 (2) lays bare the circumstances in which a civil partnership exists and these include:
- Duration of the relationship
- The nature and extent of their common residence
- The degree of financial dependence or interdependence of parties.
Furthermore, Section 40 (2) (h) of the Marriages Bill speaks of another essential characteristic to qualify a civil partnership i.e. ‘reputation and public aspects of the relationship’. This provision factors in the public perception of the relationship under scrutiny.
Thus, Section 40 protects fair contribution within a civil partnership as with any marriage upon divorce or dissolution. In fact, the intention of the law is to protect women and their contributions regardless of the nature of the relationship. Women are afforded equality before the law and their contribution does not go to waste.
Conclusively, this Bill protects the interests of women and children in any marital arrangement and if given a chance to become law will be the best thing that has happened to date. It is of importance for people to attend the consultative meetings and public hearings with regards to this Bill and input their voice.