What does the Marriages Act mean for you?

Legal Matters with Arthur Marara

The moment you step into business, and you are married, your relationship life potentially has an interest in your businesses. Your existing proprietary interests can potentially be altered on dissolution of the marriage.

The corporate veil has been pierced in many matrimonial cases. There are many people who have lost shareholding in their businesses at the dissolution of their marriages.

By now you may have heard about the Marriages Act (Chapter 5:15) hereinafter referred to as the “Marriages Act” or the “Act”, which has triggered a lot of talk on social media this past week. I have also done a talk on it on my social media pages. You can watch them.

Let us have an overview of the Marriages Act, and what it means for you. We will not be able to finish everything but I am just going to touch on some of the key aspects arising from the Act.

Purpose

This part is inevitable if we are going to put the conversation into perspective.

The purpose of the Act is set out in the preamble. It seeks to consolidate the laws relating to marriages. Prior to the Act, the marriages were governed in terms of the Marriage Act (Chapter 5:11) and the Marriages Act (Chapter 5:07).

Unregistered customary law unions were not registered as marriages except for purposes of inheritance and maintenance.

In order to consolidate the law on marriages, the Act repeals the Customary Marriages Act (Chapter 5:07) and the Marriage Act (Chapter 5:11). The Marriages Act provides for the recognition and registration of customary law unions. It goes further to provide for the recognition of civil partnerships. These were not known in the jurisdiction.

The reality on the ground is that many people were in such arrangements. We will also look into these in the article as we unfold the law on Marriages.

The Act also seeks to amend the Child Abduction Act (Chapter 5:05), the Children’s Act (Chapter 5:06), the Guardianship of Minors Act (Chapter 5:08), the Maintenance Act (Chapter 5:09), the Matrimonial Causes Act (Chapter 5:13), the General Law Amendment Act (Chapter 8:07), and the Criminal Law (Codification and Reform) Act (Chapter 9:23).

Minimum age of marriage

The minimum age for marriage is set at 18 years. Anyone below this age cannot contract a marriage or enter into an unregistered customary law marriage or a civil partnership. This is meant to prohibit the practice of child marriages.

The Act also prescribes heavy penalties for any person who contracts, solemnises, promotes, permits or allows the marriage or the pledging, promise in marriage or betrothal of a child. It is an aggravating factor if the person involved in the commission of the offence was a parent or a person in loco parentis to the child concerned.

Consent to marriage

A marriage shall not be solemnised or registered in terms of this Act unless each party to the marriage has given his or her free and full consent to the marriage. No one can consent on behalf of another person. It has to be personal consent. It also means that no one can be forced into a marriage. This is a confirmation of an existing constitutional right to associate and disassociate.

Nature of marriages

There are two marriages that are recognised in terms of the Marriages Act. These are;

A civil marriage — This is a monogamous marriage. This means that a party to this marriage cannot have another spouse during the subsistence of a marriage under the general law. In simple terms, one husband, one wife.

A registered customary law marriage — This is a marriage according to the customary law of the people concerned. This marriage is potentially polygamous meaning the husband can have more than one wife in this type of marriage because polygamy is recognised under customary law.

There is the unregistered customary law union — This is not recognised as a marriage. We will discuss about this in a separate article.

No person may be married under the general law and customary law at the same time. You thus need to choose the type of marriage that you want to be married under. The Act recognises that parties to a registered customary law marriage in which the husband has no other existing spouse in polygamy may convert their marriage to a civil marriage and the appropriate marriage officer shall, upon being satisfied that there is no impediment to the conversion, solemnise the marriage in accordance with the general law.

The civil marriage shall supersede the previous customary law marriage in the marriage register. The Act also provides that all marriages registered in terms of this Act are equal.

Legal status of spouses

Parties to any marriage have equal rights and obligations during the subsistence, and at dissolution, of the marriage.

Incestuous relationships prohibited

Incest is already prohibited under the Criminal Code in terms of section 75(2) of the Criminal Law Code. The Marriages Act affirms this prohibition for people who are related within the degrees specified in terms of the Code. This includes;

a brother and sister, whether of whole or half-blood; or

an uncle and his niece; or

a grand-uncle and his grand-niece; or

an aunt and her nephew; or

a grand-aunt and her grand-nephew; or

a grandparent and his or her grandchild; or

There is an exception however, for the parties who were not aware that there were related to each other as first or second cousins. The other instances is where it can be demonstrated that the parties belonged to a community governed by customs that do not prohibit marriage between first and second cousins.

A marriage between persons who are related to each other as first and second cousins shall be valid if such marriage was contracted before the date of commencement of the Criminal Law Code.

Civil Partnerships

Let us look at the more contentious issue of Civil Partnerships. This never existed in terms of our laws. A Civil Partnership arises by virtue of Section 41 of the Marriages Act when there is a relationship between a man and a woman who are both over the age of eighteen years; and have lived together without legally being married to each other.

A Civil partnership arises when there is no marriage. There is emphasis on the term, “legally married The Act does not specify the duration of the period for which the parties are expected to have lived together. It becomes one of the considerations that the Court will have to look at in determining the obligations of the parties on dissolution of the partnership.

The reality is that there are several people who are actually in these set ups where they are living together without being legally married together. People make choices as to what works best for them.

The question is how do you deal with their obligations at the end of the relationship. A number of times some of them would actually have purchased property together during the tenure of the relationship.

For a party seeking to establish existence of a civil partnership they need to demonstrate that they “lived together”, and are not within the degrees of affinity or consanguinity as provided in section 7.

The Act as we noted earlier prohibits people who are related from being in a relationship. The term ‘consanguinity’ refers to the fact of being descended from the same ancestor. If the parties to the relationship are related within the prohibited degree, there is no Civil Partnership that arises.

There is also a requirement that the couple lived together as a couple on a genuine domestic basis. The Act does not define the term “genuine” domestic basis. The law seems to suggest that from a view of the surrounding facts it should be established that the parties were a living as a couple.

Once the existence of a civil partnership has been proven, the rights and obligations of the parties on dissolution of the relationship shall be governed by sections 7 to 11 of the Matrimonial Causes Act (Chapter 5:13), with necessary changes.

The circumstances to be considered under paragraph (d) of Section 41 may include—

(a) the duration of the relationship;

(b) the nature and extent of their common residence;

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(e) the ownership, use and acquisition of their property;

(f) the degree of mutual commitment to a shared life;

(g) the care and support of children;

(h) the reputation and public aspects of the relationship.

Where one of the persons in a civil partnership is legally married to someone else, a court applying sections 7 to 11 of the Matrimonial Causes Act (Chapter 5:13) to the division, apportionment or distribution of the assets of the civil partnership shall pay due regard to the rights and interests of the spouse of the civil partner and ensure that its order shall not extend to any assets which are proved, to the satisfaction of the court, to be assets properly belonging to the spouse of the civil partner.

This is likely to present real challenges in future as for some married couples it is actually difficult to separate the individual assets.

There is even an interesting dimension added to the Marriages Act. Bigamy has now been removed from the picture. Technically the Marriages Act has now legalised bigamy. The Act provides that by virtue of the partners dissolving their civil partnership, neither of them shall be deemed to be guilty of bigamy contrary to section 104 of the Criminal Law Code if either of them is legally married to someone else.

The argument is that the Civil Partnership is not a marriage. The position in the Code was to recognise an Unregistered Customary law union as a marriage for purposes of bigamy. The law has shifted on this. It will also be interesting to see whether or not Adultery will remain a cause of action in our jurisdiction. This trend is showing a much more relaxed approach to the marriage institution.

LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the article/post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.

Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, commercial, and family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected].