The main purpose of the new Marriages Act is to consolidate the law relating to marriages. The new law shall come into operation on a date to be fixed by the President by notice in the Government Gazette. It must be highlighted that the age-old distinction between a “5.11 marriage” (former Chapter 37) and a “5.07 marriage” (former registered customary marriage) no longer exists. All marriages will fall under the “5.13” regime.
The main innovations of the law include the criminalisation of child marriages and the introduction of a “civil partnership” which is not a marriage per se but is a relationship that gives rise to several consequences in respect of property distribution should it be dissolved. Marriages in Zimbabwe remain out of community of property although this notion of separation is blurred upon dissolution owing to the courts’ approach of pooling the assets of the parties to ensure a just and equitable distribution of property. This piece will highlight some of the key aspects of the Marriages Act.
Minimum age of marriage
The minimum age of marriage is 18 years. Section 3 of the Marriages Act prohibits any person under the age of 18 years from entering into a marriage, unregistered customary law union or a civil partnership. It is now a criminal offence for any person (other than the child concerned) to permit, allow, coerce, aid or solemnize the marriage of a child. This new section is in line with section 78(1) of the Constitution which provides that every person who has attained the age of 18 years has the right to found a family.
Consent to marriage
Each party to a marriage must give free and full consent to a marriage before it can be solemnized or registered. Section 4 of the Marriages Act provides that no marriage can be solemnised or entered into unless such consent is given.
Recognised marital regimes
Section 5 of the Marriages Act sets out the marital regimes recognized under our law, namely a civil marriage and a customary law marriage. A civil marriage is monogamous, meaning that it is the lawful union of two persons to the exclusion of all others and no person may contract any other marriage during the subsistence of a civil marriage. A customary marriage, on the other hand, may be polygamous or potentially polygamous depending on the customary law of the people concerned. Additionally, a customary marriage may be converted into a civil marriage if the husband has no other existing spouse in polygamy.
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Section 44 of the Marriages Act recognises a further species of marriage, namely a qualified civil marriage which is a union between a man and a woman contracted under Islamic rites which can be registered subject to compliance with the provisions of the Act.
Section 5(5) describes all marriages in terms of the Act as being equal. However, the law does not explain how the marriages are considered equal when one requires exclusivity (in principle) and the other does not and how the different proprietary consequences that flow from monogamous and polygamous set-ups impact on such “equality”.
Roora or unregistered customary law unions
A lobola ceremony or roora on its own is not recognized by the Marriages Act as a valid marriage. However, section 17 of the Marriages Act requires unregistered customary law unions to be registered within three months of the union with the Registrar of Marriages which would render them potentially polygamous customary marriages upon registration.
That said, there is no sanction for failing to register a roora union. Upon termination of a roora union, there is nothing that prevents the roora union from being treated as a civil partnership with the same principles being applied to the division of the assets of the parties.
Additionally, the failure to register a customary law union does not affect matters relating to the status, guardianship, custody and rights of succession of the children of such marriage.
Equal rights and obligations during marriage
In terms of section 6 of the Marriages Act, parties to any marriage have equal rights and obligations during the subsistence of the marriage and when the marriage is terminated. The question that arises from this provision is whether or not marriages that allow for multiple spouses including certain customary marriages apply with similar effect to women, which would be an innovation in the law.