WOMEN lawyers seeking unregistered customary unions to be included in the general provisions of divorce law and subsequent property division want the Constitutional Court to find sections of the Matrimonial Causes Act unconstitutional as they are discriminatory.
The lawyers under the banner of Zimbabwe Women Lawyers
Association (ZWLA) are objecting to the limited definition of marriage under
Section 2 of the Act, which excludes unregistered customary marriage and
increasing common status as couples seek to satisfy both customary and civil
law marriages under the existing legal provisions.
The current exclusion of unregistered customary law
marriages means that if there is a divorce, the court cannot make use of the
provisions of Section 7 of the Matrimonial Causes Act which provides for the
factors which the court should take into account when they are dividing the
property between the spouses for equitable distribution.
ZWLA last week applied for direct access to the
Constitutional Court in terms of the Constitution, after their seemingly
endless pleas to have the section in question amended for the definition of
marriage to include the unregistered marriage went unheeded.
The majority of nuptials in Zimbabwe are unregistered
customary marriages, yet the meaning provided under the section which the women
lawyers seek to impugn, has no provision for such marriages.
Under existing law, which a new marriage Bill still before
Parliament seeks to rectify, a couple in a registered customary union cannot
convert to a civil union, so most couples now decline to register their
customary union to leave open the possibility that they can later get married
in church or before a magistrate for a registered civil union.
In their application, ZWLA cited the Ministers of Justice,
Legal and Parliamentary Affairs and of Women Affairs, Community, Small and
Medium Enterprises Development, Zimbabwe Gender Commission, Zimbabwe Human
Rights Commission and the National Council of Chiefs in its role as the
custodian of traditional and customary laws.
Last week, three judges of the Constitutional Court,
Justices Paddington Garwe, Rita Makarau and Anne-Mary Gowora, heard arguments
from legal counsel of both parties and reserved judgment. ZWLA lawyer Advocate
Choice Damiso instructed by Mrs Dorcas Atukwa submitted that their contention
was that the definition of marriage provided for in Section 2 of the Act is
unconstitutional for being inconsistent with the provisions of certain sections
of the Constitution.
“In particular, the definition of a marriage provided for
in Section 2 of the Matrimonial Causes Act is constitutionally invalid because
it excludes unregistered customary marriages,” argued Adv Damiso. “To that
extent, applicant therefore intends to file an application with the
Constitutional Court seeking an order to declare the impugned section
constitutionally invalid.”
Adv Damiso said the Marriage Bill is currently before
Parliament and there were fears that the President will likely assent to the
Bill without the definition in Section 2 of the Matrimonial Causes Act, which
governs divorce and its aftermath, being addressed to include unregistered
customary law marriages. However, lead judge, Justice Garwe questioned why the
women lawyers were rushing to court when the Parliamentary processes were not
yet completed and the Bill not passed into law.
The judge expressed the view that the application was not
yet ripe for determination since the new Bill was still before Parliament. But
Adv Damiso argued that the application could not be regarded as premature given
the long history of advocacy that has been undergone by her clients and other
organisations to get the Minister of Justice, Legal and Parliamentary Affairs
to introduce the necessary amendments in the definition of the Matrimonial
Causes Act.
She brought to the attention of the court observations that
have been made by the High Court in numerous cases calling for legislative
reform on the marriage laws. The challenge to the provision, said Adv Damiso,
was informed by a history of several efforts to include the unregistered
customary marriages in the section in question, but to no avail.
Mrs Fortune Chimbaru of the Attorney General’s office
acting for Ministers of Justice Legal and Parliamentary Affairs and Women
Affairs Community and Small and Medium Enterprises Development conceded that
the impugned provision should be amended to include unregistered customary law
marriages under the definition of Marriage in the Act.
She, however, argued that ZWLA rushed to court prematurely,
as the Bill was not yet passed into law and the women lawyers fears that the
President will assent to the Bill in its present form without addressing their
concerns were unjustified. It is the positions of ZWLA that that exclusion of
such unions in the Matrimonial Causes Act amounts to the discrimination which
the women lawyers argue is prohibited under section 56 of the Constitution. Herald
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