Unpacking the Marriages Act: Don’t scandalize the law

THE Marriages Act enacted early this year has been met with mixed feelings with some calling for it to be resisted and some rebuking it for its stance to seemingly officialise civil partnerships from where “small houses” are classified and set to benefit from existing registered marriages in the event of the death of the man.

The bone of contention is largely around issues involving civil partnerships loosely called kubika mapoto/umasihlalisane (cohabiting) as being a threat to the marriage institution as a woman can claim a stake from that union despite the existence of a registered marriage.

Sunday News spoke to Advocate Choice Damiso a member of Women in Law Southern Africa (WLSA) who gave an insight into the Act and the clause on civil partnerships saying the law must not be scandalised as there is an assumption that it is out to break marriages, also highlighting that civil partnerships do exist, but society is unaware of the various types that exist that they could actually be in.

“Section 41 of the Act provides for civil partnerships. Civil partnerships are relationships which are ‘marriage like’ but fall short of the legal requirements of a marriage. People like to think of civil partnership in a pejorative manner and refer to them as “kuchaya mapoto” but it should be noted that these adulterous relationships are not the only type of civil partnership that can exist.

“For example, everyone knows of situations where a couple has stayed together as husband and wife after the woman became pregnant the first time and ‘tsvakirai kuno’ was paid but not lobola. This type of relationship is quite common in the community. It qualifies to be treated as a civil partnership but by no stretch of imagination can be equated to kuchaya mapoto,” she said unsympathetically.

Adv Damiso said in some cases women marry a man with “unfinished business” who has not dissolved a previous union meaning her marriage falls by the wayside.

“Sometimes couples or one part of a couple genuinely believes that they are in a valid marriage when in fact they are not. For example, a woman may enter a civil marriage with a man without knowing that the man was married before and had not taken the steps to formally dissolve that marriage. What it means in law is that the subsequent marriage is void from the beginning, but now it can be treated as a civil partnership.

“It should also be noted that the parties shall be regarded as being in a civil partnership for the purposes of determining the rights and obligations of the parties on dissolution of the relationship only. Section 41 does not have the effect of legalising civil partnerships or equating them with marriage. It simply recognises that they exist and provides the rules to ensure that neither spouse loses out economically in the event of the relationship coming to an end,” she explained.

Adv Damiso said the factors which a court should take into account before deciding whether or not to treat any relationship as a civil partnership are provided for in the Act and it remains to be seen how the courts are going to exercise their discretion in applying these principles. The existence and recognition of civil partnerships in the new Act has left some pondering on the safety or sturdiness of the institution of marriage today with this union being described as a threat.

“I would agree with those who see a threat to marriages being posed by civil partnerships. It is true that a ‘small wife’ can claim a share of the estate that she had accumulated with a man she was in an adulterous relationship with and this can be prejudicial to the ‘main wife’ but the courts do have a wide discretion in determining the issues and one hopes that the courts will apply great circumspection in the exercise of their discretion and that they will not make decisions at odds with the values of society and that scandalise the law.

“The intention of Parliament was never to destroy marriages or to cause marital discord but to apply a measure of equity and justice to those in civil partnerships. This legislative objective should underlie any attempts at giving meaning to the Act. Members of the public should also not lose sight of the fact that small houses are not the only type of civil partnership that exist. There are other types of civil partnerships that do not deserve the accusation of being adulterous, home wrecking and scandalous,” she added.

The Act also goes on to highlight the issue of unregistered customary law unions (roora/lobola) that are very prevalent in Zimbabwe saying they are no longer recognised as marriages in Zimbabwe. It states that marriages contracted after the new Act was crafted must be registered within the first three months of that union while existing ones must be registered within the 12 months from the time the new Act was passed.

Adv Damiso, however, felt that unregistered customary marriage still deserves to be respected.

“A point of great concern when it comes to unregistered customary marriages (which is the majority of marriages in Zimbabwe) is that the new Marriage Act did not amend the provisions of the Matrimonial Causes Act which exclude unregistered customary marriages from being treated according to the principles of equity set out in that Act upon divorce. This leaves the spouse with no option except to invoke the Matrimonial Causes Act via accepting that their union is a civil partnership and not really a marriage. This is not acceptable. An unregistered customary marriage is a proper marriage and should be accorded the respect and dignity of a marriage and not be lumped together with civil partnerships which already the public view with derision,” she suggested.

One great concern noted by Adv Damiso, is that women had, under the previous marriage laws regime, been sidelined in that a spouse could legally sell any property including the matrimonial home, without consulting or even alerting the other spouse as long as the property was registered in his or her own name.

She said the economic and gender reality in Zimbabwe is that most houses/ properties are registered in the name of the husband. There are many cases where husbands have sold the matrimonial house without telling the wife leading to the family losing the matrimonial home. This is inherently unfair for many reasons including the reason that the wife could have made a direct or indirect contribution to the purchase of the house even though her name does not appear on the title deed.

“Several judges of the High Court have deplored this position of the law while being very clear that it was not their job to change the law, one would have hoped that Parliament would take the opportunity to introduce provisions in the new Marriage Act to protect the matrimonial home from being sold by the spouse who owns it without agreement with the other spouse, but this was not changed. The position remains the same,” she lamented.

The media is awash with reports of husbands selling their matrimonial homes without the knowledge or consent of their wives causing a lot of discord in the marriages. Adv Damiso stressed the need to equally register the customary marriages in accordance with the new Act.

“The Marriage Act makes it clear that all marriages should be registered. When a marriage is registered proving its existence becomes easy. A woman who has a marriage certificate does not have to rely on the mercy or patronage of her husband’s family members to depose an affidavit to prove that she was married before she can access the benefits of a spouse such as pension payouts or inheritance. A big concern however is this, it has always been a requirement for all marriages to be registered but notwithstanding this, couples do not feel motivated to register their marriages leading to most marriages not proceeding beyond the kubvusa pfuma/lobola stage,” she said.

She said the big question this time is what the Government is going to do differently to motivate couples to register their marriages.

“Are they going to embark on a massive marriage registration outreach programme? Are they going to further decentralise the marriage registry offices? One suspects that unless the Government takes these measures, nothing will change. Marriages will continue to be unregistered. Unfortunately, an unregistered marriage puts the wife at a greater disadvantage than the man,” said Adv Damiso.