Source: Analysing ‘civil partnerships’ in the draft marriages Bill | The Herald July 10, 2019
There has been an ongoing debate about the implications of Section 40 of the current draft Marriages Bill. This Bill is yet to be gazetted and it must be emphasised that as an unofficial Bill, it is susceptible to alterations. It currently does not form part of the law and from a law making process perspective it still has many other stages to undergo before it is enacted and part of the law. The nature of the debates that many members of the society have engaged in may positively impact citizen engagement in the law making process and it is important that citizens formulate informed opinions on the effects of this section on the country’s marriage laws.
As it currently stands, the draft Bill introduces ‘civil partnerships’ and defines them as a relationship between a man and a woman who are both above the age of eighteen, are not related and have a relationship as a couple living together on a genuine domestic basis. This may be interpreted to mean that civil partnerships pertain to adults who are cohabitating together owing to a romantic relationship which exists between them. The relevance of including such a family set-up in the draft Bill is to offer protection of the parties’ property rights when the parties decide to end the relationship. These partnerships are not considered to be marriages or the equivalent of a marriage but are solely acknowledged with the aim of ‘determining the rights and obligations of the parties on dissolution of the relationship.’ The Act which governs divorce procedures in Zimbabwe, the Matrimonial Causes Act (Chapter 5:13), according to the Bill will apply when people who are in civil partnerships decide to end their relationship and assert their property rights. By including this demographic of the society in the country’s marriage framework, the law maker would have positively taken steps to protect the property rights of all citizens without discriminating on the basis of marital status.
Worthy of note is the fact that Section 40(2) of the draft Bill describes circumstances that courts may use in determining whether a civil partnership exists and instead of using the word ‘shall’ which would make these considerations mandatory before the court decision is made, it gives the burden to the court to interpret the law and make the final determination of the full meaning of ‘civil partnership.’ Without using the word ‘shall’ which is obligatory, the law maker will once again burden the courts with issues of determining whether a civil partnership existed between two parties instead of creating a uniform checklist that should be met when one claims property in a civil partnership. The circumstances, upon which the existence of civil partnerships may be determined while necessary, include some vague social constructs which appear difficult to determine at law. Clauses such as ‘mutual commitment to a shared life’ and ‘reputation and public aspects of the relationship’ are extremely subjective and unclear on how they can be legally measured. The latter might be an even more confusing because cohabitation between adults in Zimbabwe has been historically and culturally frowned upon and discouraged by society. The public outcry against this section stands as evidence that such relationships have the potential to negatively impact a person’s reputation. It begs the question of why it was necessary to include such vague provisions in a law amendment process meant to harmonise different laws and bridge gaps which have been noted to have an adverse influence on many lives.
One of the main Constitutional precepts that the Marriages Bill takes into account is Section 26 of the Constitution which includes that there must be equality of rights and obligations of spouses during the marriage and at dissolution yet the Bill does not describe what equality during the subsistence of the marriage entails particularly regarding the issue of property. There is much focus on property rights and obligations when the marriage or the partnership has ended but no mention on how parties ought to respect one another’s property rights during the subsistence of the marriage. It begs the question of whether this Bill actually adequately tackles the gaps between property law and family law where the rules of property law allow the owner of the property to sell or lease their property without seeking anybody’s consent whereas family law involves shared use and benefit from property acquired during the marriage. We already have the crisis of dispossession which is happening to many people in marriages when their spouse decides to mortgage or sell the house without paying heed to the family’s right to shelter or the contributions made to its acquisition and upkeep. When creditors such as bank collect their money, they may resort to selling this property even when it is jointly registered in the names of both parties. Where is the protection of people’s property rights in marriages?
Section 40(5) of the Bill, which may be the bane of many households as appears in the comments by the public on different platforms, states that a civil partnership will still be acceptable in circumstances where either one or both parties are legally married and in a monogamous union with somebody else. What many have failed to understand is that this provision does not ‘encourage adultery’. Adultery is not a crime and therefore people who are in civil partnership with married persons also deserve to assert their property rights when the relationship ends. For people married in a monogamous marriage, currently known as a civil marriage (Marriages Act (Chapter 5:11)) the remedy to sue for adultery damages will continue to exist unless specifically repealed or removed from the law. Adultery will be considered a crime if a person decides to marry another person while they are still married, they would have committed a crime called bigamy. Admittedly, the manner in which the provisions are couched is undesirable and creates unnecessary panic in society because it seems to endorse adulterous unions. The fact that the law essentially ‘allows’ for people in marriages, particularly those in monogamous marriages to establish other homes and families may weigh down society’s perception of marriage.
The fact that the Bill only specifies people in a civil partnership’s property rights at dissolution alone is an inadequate remedy by the Parliament. The protection must extend to instances where the other partner dies because death also comes with inheritance, which heavily revolves around property rights. It is indeed conceded that this draft Bill as a whole is defective; however the effort to protect all people regardless of marital status is a most welcome amendment. There is need to amend the language so that it can be clearly interpreted by all persons starting with the term ‘civil partnership’ which is known across the world to include marriages between people of the same sex. Additionally the implications of civil partnerships on the law of succession must be defined so as to offer protection at dissolution and at death. If Section 40 is to be adopted as it appears in the draft Bill, there are potential implementation challenges which may arise especially where one or both parties in the civil union are in a monogamous marriage with someone else. If the property rights of spouses during the subsistence of the marriage are not explicitly defined and protected then some members of society might suffer a double jeopardy leading to property disputes.
Adults who choose to cohabit deserve the full protection of the law and the unfettered enjoyment of property rights without facing discrimination based on marital status. To create a more conducive environment for the protection of such rights, the Bill must completely transform the contents of Section 40 and offer citizens more security that the sanctity of marriage is still being upheld.
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