Editorial Comment: Time to address deficiencies in our marriage laws

Magistrate Munamato Mutevedzi on Friday last week.
The main problem is that there are two quite different paths to marriage in this country, paths which legally cannot be connected in civil law although were partially connected in criminal law with the codification of bigamy law fairly recently.
At the heart of the problem and, the resultant high level of potential unfairness to many, mainly women, was the once tenable fact that couples married either under customary law or under civil law and that no one would want to do both.
Churches, with their third set of marriage laws, which are never recognised by the secular State, had kept the lid on hard choices by offering those married under customary law the opportunity to have their union blessed and to be recognised as a monogamous marriage in the eyes of the church, although not in the eyes of the State, since the church ceremony would not be registered with the State.
Under this dual law, a relic of British colonial policies towards “conquered populations”, indigenous residents of Zimbabwe were entitled to have their customary union recognised by the State through a simple application to a government official, known variously as the native commissioner, the district commissioner and now the district administrator. Until independence many couples married under customary law did register these unions; for many it was the only way they could get on housing waiting lists and the like.
But, this is one of the problems, once a customary union was registered under what is now called the Customary Marriages Act, the couple could never proceed to a civil union, registered under the Marriages Act. And that is still the case today. Once you have chosen one path to a registered union you can never choose the other path without going through a formal registered divorce or through the death of a spouse.
Yet the reality is different. From at least the 1970s, a growing number of couples did want both. Community and family pressure, or a regard for tradition and culture, meant that the couple wanted a customary union. At the same time the couple wanted a civil union, usually a church wedding so their marriage was registered simultaneously under civil and church law as a monogamous union.
We need to remember that most Zimbabweans now getting married have grown up with their grandparents giving both cultural and Christian instruction and they are immersed in both identities as they grow up. The solution was simple, elegant and legal. The couple would enter a customary union, but would not register this. They would then go through a second ceremony, this time the “white wedding” which would see their marriage registered under the Marriages Act.
For most couples this works well and usually the two ceremonies are very close together; they plan on a “white wedding” and go through the customary union simply as a preliminary. It is legal because the State does not recognise a customary union unless this is registered. The overall result is that hardly any, if any, customary unions are now registered. Most couples, even if they wait years, want the path to a registered civil union left open.
But for a significant minority of couples this does not work. A man can marry Miss X under customary law, not register this marriage, and then marry Miss Y under civil law, and have that marriage registered. Or a man can marry Miss Y in a registered civil union and then marry Miss X in an unregistered customary union; in this second case any attempt to register the second marriage has always been criminal.
But objections and complaints, even with the new bigamy laws, are rare since jailing a breadwinner causes other problems. The result is that the customary wife is left in a very precarious position, with no State recognition of her status, except in certain inheritance issues and that is a fairly recent amendment. The codifiers of our criminal law did see the problem, and extended the definition of bigamy, effectively to include unregistered customary unions, but this was not common knowledge until Friday last week. Even Magistrate Mutevedzi admitted he was unaware of that provision until it was pointed out to him, and the lawyers handling that case seem to have come upon it late in their legal challenges. We believe that this was the first time this provision was ever used in any legal proceedings, civil or criminal, in this country.
We think the time has come for Parliament to recognise the actual case on the ground. All customary unions need some sort of State recognition and it must be possible to move from a State recognised customary union to a civil union. The old either/or split cannot be sustained when so many want both. So for a start it must be made legal for a couple to register both their customary union and their civil union, with the financial details of a divorce handled for the civil union.
At the same time either spouse must be able to at least notify the authorities that a customary union has taken place, so there is some sort of official record, although registration would only be confirmed after investigation if the other potential spouse objected. While a notification was active, even if unresolved, neither spouse would be permitted to enter another potential marriage. But with dual registration possible such objections would be fairly rare and for most couples the registration of the civil union would overtake the notification and make it a dead letter. The State, after all, just needs to know who is married.
Other solutions may be possible. We look forward to the debate. But with all judicial officers, from magistrates to the Supreme Court, calling for a resolution after they see the human suffering involved in the present law, we think the time for delay is over.