Inconsistencies in Marriages Bill

ZIMBABWE Women Lawyers Association was at the fore of advocating for the alignment and harmonisation of marriage laws in Zimbabwe before the enactment of the 2013 Constitution and has written extensively around the current law amendment process. While the Marriages Bill provides for many progressive principles and amendments, a thorough review of the proposed law has revealed that a more exhaustive and fine tuned document, based on constitutionality, socialisation and regional and international instruments would aptly tackle the inequalities inherent in the current marriage framework.

Property Regime

According to Section 26 of the Constitution, there must be equality of rights and obligations of spouses in marriages and at dissolution yet the Bill does not define how that equality shall be achieved especially during the subsistence of the marriage. This is especially important because currently, all marriages are out of community of property according to the Married Persons Act which means that whoever has registered title over property has the right to do with it whatsoever they please. Many immoveable properties in Zimbabwe are registered in the names of husbands who can, during the subsistence of the marriage, lease, sell or hypothecate that property without the need to seek the consent of the wife. This has led to the dispossession of many families especially where the person with the registered title fails to honour a debt or decides to sell the property.

The Marriages Bill completely overlooks a perfect opportunity, which the court has continued to advocate for, to amend property law rights in marriages. There is a current legal lacuna which pitches real rights of the registered owner against personal rights that accrue in the marriage in relation to matrimonial property.

Protection during the subsistence of the marriage

The equality of rights of spouses in accordance with Section 26 of the Constitution also caters to issues that affect parental rights over children. Currently, the Guardianship of Minors Act states that the father is the natural guardian of the child. This present position stands in complete opposition because the position of being a ‘natural guardian' should automatically accrue to the child's biological parents regardless of sex. Rights of custody and spousal maintenance remain in want of being defined in the Bill and adequately reflective of the equality doctrine.

Divorce Processes

According to the Bill, all marriages are of equal status before the law and whoever contracts any type of marriage must ensure that such marriage is registered at the Marriage Registry. While the current law does not make any statutory provision for property sharing in unregistered customary law unions the Bill goes on to add that people who are in civil partnerships shall share their property according to the Matrimonial Causes Act.

In both the Bill and the Matrimonial Causes Act, there are no stated provisions on how this law intends to protect children's rights during divorce. In addition, it appears that while on one hand all marriages are being regarded as having equal status before the law, Section 16 of the Bill once again gives limited recognition to unregistered customary law unions. These unions are still not being recognised for property sharing whereas the brunt of issues involving property sharing is from people who have dissolved such unions.

Civil partnerships

Section 40 of the Bill refers to civil partnerships and it does not resolve how these unions come into being. The circumstances provided in the Bill on how one can be regarded to having been in civil partnerships need clarity for example with regards to duration of the marriage.

Lessons from the region show that setting a specific duration helps regulate such unions. A good example can be derived from Malawi where parties need to prove that they stayed together for a minimum of five years. The lawmaker cannot relegate the duty to define what constitutes a marriage to the courts. In order to protect the sanctity of monogamous marriages, Section 40(5) of the Bill needs to be rephrased so as to show the clear demarcations between monogamous marriages, polygamous marriages and civil partnerships.

Protection at death

As stated earlier, the Bill neglects to clearly articulate property rights as they relate to matrimonial property. This anomaly is also extended to rights of spouses at inheritance and for parties in civil partnership whose protection of property rights is solely limited to dissolution when the relationship ends and not dissolution when one party dies.

The current inheritance laws only offer the spouse full rights to inherit from their spouse's deceased estate and states that children are only entitled to a share of the free residue in the event that there is a surviving spouse. Inheritance laws need to ensure effective protection to spouses whilst guaranteeing that a child gets a share which at the moment is based on estates that have that residue. Where then is the protection of children's rights?

Digital registration of marriages

There is room to have a comprehensive digital blueprint of all marriages which are being contracted in Zimbabwe. The continued use of banns as a way to announce marriages needs to be revisited so that registration of marriages adopts the model of property registration in Zimbabwe. This allows for security checks and balances to curtail issues such as bigamy. Digitalisation is a must; it is the most progressive opportunity to have a modern accountable marriage framework.

Age of consent to sex

The Marriages Bill proposes the prohibition of child marriages. It states the minimum age to contract any marriage at eighteen but once again falls short in addressing the issue of age of consent to sex. According to the Criminal Codification and Reform Act a person; in this case a child, is legally capable of consenting to sexual intercourse at the age of sixteen. It is common knowledge that sexual intercourse can potentially lead to the conception of a child which is regarded as ‘founding a family'. The Constitution states that persons under the age of eighteen cannot found a family and therefore there needs to be alignment of laws specifically relating to the age of consent. ◆ For feedback, questions and comments please feel free to email - zwla@zwla.co.zw. Look out for the next article in this column next week and the Kwayedza every Thursday. For a 24 hour response to Gender Based Violence issues, call our toll free number 08080131: hotlines 0776736873/0782900900