Saturday, 30 May 2020

LEGAL PROTECTION FOR UNMARRIED COUPLES

Couples living together on a genuine domestic basis, with neither married to anyone else, but who have not entered into a civil marriage or into a formally solemnised or officially registered customary union, will be deemed to be in a civil partnership under the proposed new Marriages Act.


This will mean that when the partnership dissolves, the property will be divided or distributed in terms of the Matrimonial Clauses Act, which has hitherto applied only to those in registered unions who are divorced.

This has led to suffering, especially among women, who are dumped penniless when they split with their partners.

The section creating civil partnerships was in the original draft of the Marriages Bill now before Parliament. 

But last year, Cabinet directed that the section be withdrawn after objections that such a partnership was not consistent with Zimbabwe’s customary and Christian values.

There were fears it would legalise “small houses”.

But on Thursday it was retained during the committee stage of the Bill’s progress through the National Assembly, but with an amendment that it only applied to those couples where neither partner was married to anyone else, either in a civil or customary union.

The National Assembly adopted an amendment moved by Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi with new proviso, which seeks to strengthen the institution of marriage while protecting women who might find themselves in unregistered unions. 

Minister Ziyambi told the House he had removed married people in the category of civil partnerships “because this is what caused much debate so that we protect those in partnership but are not married”.

The new clause provided that where either of them subsequently marry another person either civilly or customarily, only those assets acquired by them before the marriage to the other person would be divided or distributed on dissolution of the partnership.

The amendments on the civil partnership also close loopholes when it comes to dividing property, dealing with complications such as they continue living together when one gets married and even when one enters a civil marriage with someone else but a customary union with the civil partner, in which case they will be regarded as being in an unregistered customary union regardless of whether lobola was paid, or not paid in full.

Partners in a civil partnership have to be at least 18 and are bound by the same bans on close relations marrying as married couples.

The main purpose of introducing civil partnerships was not to give an option to marriage but to ensure that couples deemed to be in such a partnership have to divide their property when they split up as if they had been  married.

This largely protects women who live with someone, and then get dumped without a cent. 

The proposed Marriages Act will when approved replace both the Customary Marriages Act and the Marriages Act, impose common standards of age and bans on close relations marrying, have common standards on consent.

While the law on civil marriages will remain almost identical to what now exists, there are more changes in the customary unions, which have to be solemnised before a magistrate or the local chief, or registered within three months if there was no solemnisation.

There has been a growing trend for couples to enter an unregistered customary union and then later marry in a civil union because registering the customary union barred them from ever entering a civil union, which is usually celebrated by a civilly licensed minister of religion.

The Bill ends this total split, that came into effect at the very start of the colonial period, by allowing a solemnised or registered customary union between a monogamous couple to be converted to a civil marriage.

But no one can be married simultaneously in a customary union and civil union.

These unregistered customary unions have achieved some recognition by the courts for some purposes but any remaining loopholes will now be covered by the civil partnership status if there is doubt.

Meanwhile the Constitutional Court Bill and Attorney General Bill were tabled before the National Assembly on Thursday.

The Constitutional Court Bill provides for the operation of the Constitution Court whose Judges have since been separated from those sitting in the Supreme Court. 

The AG Amendment Bill provides for how the office of the Attorney General should operate.

Both proposals for legislation are part of Government efforts to align the laws with the Constitution. Minister Ziyambi steered both Bills through their first reading, a process which simply gets them into Parliament for subsequent debate, amendment and approval.

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