THE new Marriages Act passed into law by President Mnangagwa in May this year after going through the House of Assembly and Senate has come as a huge relief for women as the law can now sufficiently protect their property rights upon divorce or death of the significant other, legal experts have said.
The new marriage law, which puts all marriage laws under
one umbrella, thereby making it possible to convert a registered customary
union into a civil marriage, is still to come into operation. The President
needs to fix the date by notice in the Government Gazette.
This law has brought sweeping changes to the marriage laws
in Zimbabwe with the Marriage Act and Customary Marriages Act being repealed,
replaced and extended by the Marriages Act.
Besides resetting the minimum age for marriage at 18, and
insisting that regardless of the type of marriage, both parties need to give
their unqualified consent, the new Act also introduces a civil partnership
assumed where a couple lives together, and important when it comes to its
termination.
Further, it recognises an unregistered customary law union
as a marriage although desires that this is registered.
The civil partnership is new and relates to a man and woman
staying together without payment of lobola or any ceremony or registration,
that is cohabiting (small houses and the like), and it does not matter whether
one or both of those involved is married to someone else. This also applies to
boyfriends and girlfriends living together (kuchaya mapoto).
While this is not a marriage, it is only recognised for the
purposes of determining rights upon death or dissolution of the relationship.
Parties can upgrade to an unregistered customary law union if payment of lobola
is done and other conditions of such unions are met.
Without legal protection, many women could be left homeless
or without a means of income after their marriage ends or if their husband
dies.
The new law makes it clear that any property or assets
acquired during the partnership will be distributed in the same way that
property is distributed when a married couple divorces using the same law.
Legal experts who spoke to The Herald yesterday said the Marriages Act amendments ushered in a new era of marriage or union choices and provide adequate protection to women who for a very long time were disadvantaged.
South African-based legal expert Mr Tendai Toto said the
right to establish families is one of the freedoms that have been impacted
including equality before the law and addressing societal injustices on women
and children.
Our societies are evolving and changes in our ways of
living are inevitable, especially the pursuit of happiness and the avoidance of
injustices to women and children including men as well,” said Mr Toto.
“That is not to say men and women must not be insensitive,
intolerant and reckless in their conduct.
“I still implore men and women to carefully choose the type
of marriage unions that they prefer and or suit them in the exercise of their
rights and freedom to form and establish families and their pursuit of
happiness.”
Advocate Choice Damiso said the provisions on civil
partnerships should be welcomed as they reflected Parliament’s awareness of the
prevailing social realities.
“Civil partnerships are recognised only for purposes of
division of property upon the ending of the partnership,” she said.
“Failure to do so can only work to the disadvantage of the
women in those relationships.”
In the past, laws around marriage and divorce were not
conforming to the Constitution, which provides that spouses have equal rights
and responsibilities.
Facilitating marriage of children under 18 years is now a
criminal offence, among other radical changes in the new marriage law.
Under the new Act, civil and customary marriages are
different in that a customary marriage is possibly polygamous with a different
way of solemnising these marriages.
Those in unregistered customary marriages now have to be registered
within three months of the creation of the union if the couple does not wish to
go through the solemnisation process before a magistrate or chief. This is,
however, not mandatory.
One major problem with two separate laws operating
independently was that a decision to enter a registered customary union or a
registered civil union was permanent.
The reality was that most Zimbabwean couples wanted both,
and so few customary unions were registered in the last few decades and most
couples went through an unregistered customary union and then went for the
“church wedding” or a civil marriage.
Under the new law, a monogamous couple can now have it both
ways. A registered or solemnised customary union can be converted to a civil
union fairly simply. Herald
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