Source: Gaps in the current marriage framework | The Herald May 22, 2019
In the last few days, there has been much discussion about possible amendments to be made to the Zimbabwe marriage framework.
Before any legislative amendments become law, they take the form of a draft Bill of Parliament which has to be published in the Government Gazette for public awareness. Only after the Bill has been approved and enacted will it be recognised as the law. We shall be discussing the marriage reform process in a series of articles to follow.
Before delving into the intricate workings of the current law and any proposed law, it is necessary to provide a background of the existent marriage regimes, the gaps and recommendations for improvement.
In this article we shall be focusing on the customary marriages framework as it presently stands. To recap, there are two types of marriages that are currently recognised in Zimbabwe. There is the civil or general law marriage registered under the Marriage Act (Chapter 5:11) and this marriage is of a monogamous nature. The second one which is potentially polygamous is the customary marriage which may be either registered or unregistered.
One may choose to register their customary law union in terms of the Customary Marriages Act (Chapter 5:07) or simply remain in an unregistered customary law union, which is the most common type of union in Zimbabwe as the majority of women living in the rural areas are in this type of union. There are many negative consequences which have arisen from the present laws and these issues raise many concerns particularly to the rights of women and children.
Age of consent to marriage
Firstly, the current marriage structures do not imitate the sentiments of the Constitution by stipulating that the legal age to consent to marriage is eighteen. Instead we have the civil law framework which states that nobody under the age of eighteen may consent to marriage conversely girls may get consent to marry from their guardian when they attain the age of sixteen.
To add assault to injury, the Customary Marriages Act does not provide any age restriction to when one can consent to marriage. Such laws provide limitations on the full protection of the girl child as was aptly articulated in the Constitutional judgment of Mudzuru and Tsopodzi case which took a progressive step towards the abolition of child marriages.
Additionally, it ignores Section 81 of the Constitution which speaks to the protection of children from sexual exploitation. The gender imbalance and the unequal protection of boys and girls puts girls at a higher risk of sexual, psychological and other many forms of exploitation that come with unequal bargaining power particularly between an adult and a child. This same framework does not take into account the illegality of child marriages and in addition to not providing an equal minimum age of consent it also does not provide any remedy or precaution to counter the existence of child marriages.
There must be a budget allocation for citizen awareness and education, means of prevention, provision for access to information and forms of monitoring and evaluation of survivors of child marriages and a vetting system to ensure that no child contracts a marriage or any family structure that emulates that of a marriage for example cohabitation.
Limited recognition of unregistered customary law unions
Only the registered marriages receive full recognition at law from the subsistence of the marriage to the dissolution either by death or through divorce. On the other hand is the unregistered customary law union which only receives limited recognition of the law which means it is not recognised as a marriage except for the purpose of maintenance, inheritance pension, custody, guardianship, maintenance and access.
A civil marriage is both legally and socially regarded as superior which is an archaic rationale best fit to remain in the colonial era where Africans’ marriages were regarded as inferior to those contracted under general law. The Constitution speaks directly of equality during the subsistence of the marriage and at its dissolution and speaks against discrimination on the basis of marital status and custom; both illegalities which currently exist in our marriage laws.
Lack of a regulated
When dealing with dissolution through divorce, only the registered marriages being both the registered civil law and registered customary law marriages are legislated which means they have guiding provisions and principles on how the law can aid parties in reaching a conclusion.
These laws are found within the Matrimonial Causes Act (Chapter 5:13) which describes the manner in which property may be shared and what will happen to the children after the divorce.
The same cannot be said for an unregistered customary law union wherein the complex family issues that arise at dissolution are ignored and the remedy only exists in common law where the aggrieved parties have to first of all prove that they were in a valid marriage in the first place.
There are no stipulated provisions of how one proves the existence of an unregistered customary law union. The issues affecting this couple such as who will have custody of the children, maintenance and access rights are ignored. What becomes of the best interests of the child conceived through an unregistered customary law union?
Unlike in registered marriages, such a child’s interest can only be served if the parent in addition to making a claim for property sharing to protect their proprietary interest, also makes a separate claim for maintenance through the Maintenance Court, for custody and access through the Children’s Court and in some circumstances for a protection order in the event of violence.
The perpetuation of unequal status of marriage will continue to be harmful to the full humanity of women and children.
There must be a clear age of consent to marriages which does not result in any form of discrimination based on sex; the law must give full recognition of all marriages so that all persons in marriages receive adequate protection of the law. Any and all laws that allow for marriages with minors have no place in our law. As citizens, we have the right and duty to contribute to the law making process by attending Parliament’s public consultations or to give written submissions to Parliament once a Bill has be gazetted.
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