An end to 5:11 & Monogmay in Zimbabwe: Unpacking The Marriage Bill Amendments.

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Mhaka Tinatswe

Founder/Editor

On the 9th of May 2019, the President’s cabinet approved the Marriages Bill. The conception of this Bill started in 2015 after the Constitutional Court handed down the Mudzuru & Another v Ministry of Justice, Legal & Parliamentary Affairs judgment which set the minimum age of marriage at 18. The purpose of the Bill was to enact ONE statute that would regulate all marriages, improve access to the constitutional right to found a family, eliminate child marriage, decriminalize wilful transmission and protect the large population of women in Zimbabwe in unregistered customary law unions from arbitrary property sharing at divorce or death. After a year of public outrage, continued deliberation and an announcement that the section on civil partnerships would be removed (which was not the case because announcements do not constitute due process is removing or adding from proposed laws) the amendments to the bill have been published and the Bill is now at the Upper House where it awaits presidential assent. While this is the process of law-making, there has been a lack of transparency about what the Bill will mean for marriages and most of the country. Here is how it happened 

The Announcement that lobola/roora is no longer a requirement  

On Friday June 12th, the Minister of Legal and Parliamentary affairs announced that lobola was no longer a requirement if two consenting adults want to get married. The announcement sparked mass hysteria on social media and broadcasters countrywide. Over the last two weeks, the discussion on bride price/roora/lobola has been the center of all social commentary. The legal position of lobola in Zimbabwe was set in the 1984 judgement of Katekwe v Muchabiwa which stated that a woman above the age of 18 was legally emancipated from her father which meant fathers could no longer sue for seduction on behalf of their daughters and were there not legally entitled to any payments, bride price included. The judgement outlined that it was an optional practice, and has since been treated as such. Now what is curious is that an announcement would be made on lobola because the news is 36 years old, has not been published as proposed law or framework and the recently published Marriages Bill Amendments does not deal with the issue of lobola in any way. All the while the Marriages Bill Amendments have subtly been slipped to the upper house and only one signature away from becoming law. 

The hush hush elimination of monogamy 

Amendments made in the Marriages were made to sections 9, 10, and 40, dealing with the designation of marriage officers to improve access for people in remote areas or outside the country and civil partnerships. The biggest change is the replacement of section 40 with section 41. The bone of contention with the section was initially that civil partners to people in registered marriages might reach into the property of the marriage and benefit from the estate upon their death. Though introduced to protect the 70% of rural women in unregistered customary law unions that make up Zimbabwe, a majority of the public were disapproving and that is what led to the amendments.  Here is what the new amendments mean in summary :

  1. Bigamy will no longer be a criminal offence. Section 41 (c) (iii) states that if people in a civil partnership dissolve a relationship neither can be found guilty of bigamy.
  2. Section 41 (5) (c) states that if a person is in a registered marriage and registers customary marriages with other partners, all the partners after the civil marriage will be considered unregistered uncustomary law unions. With or without section 41 (c) (iii) this provision on its own renders section 104 of the Criminal Code (Law Reform and Codification) obsolete and decriminalizes bigamy. 
  3. There will no longer be any monogamous marriages/unions by law. 
  4. 41(5) states the property acquired in a civil partnership can still be shared in terms of section 7 of the Matrimonial Causes Act (this is the section used by the court to divide property at divorce) among partners if they subsequently get into registered marriages. 
  5. Civil partners can claim property from registered marriages if it can be proved 

·         Purchased with their resources.

·         Joint purchase.

·         The resources are from the employment/salary of the partner. 

·         The resources are from a business that the spouse of the partner has no stake. 

The new amendments have now gone beyond the protection of women in unregistered customary law unions and intricately deconstruct the institution of monogamy in a way that will designate the man as the perpetual head. The amendments are drowned in complicated language, lengthy and difficult to read. It is stated in the beginning that civil partners cannot claim from registered monogamous marriages and then the exceptions provided in the sections leave comfortable room for legal property sharing among multiple civil partners regardless of marital status. Additionally, the Bill reads with the assumption that the male partner in these unions will be the one with the property. The starting point has been set at a man that will have to protect his estate from multiple women who might in the future make claim to his estate.  It is important to bridge the gaps that affect rural women in Zimbabwe, especially around marriage and inheritance but it is important to draw a line on where matrimonial property can be susceptible to claims from third parties. The Chapter 5:11 marriage has long been known as the pinnacle of matrimonial security and the impact of these amendments is that there will be a very unclear if any at all demarcation in unions between consenting adults. It poses a serious threat to women that are domesticated full time, making an indirect contribution to homes who will at dissolution or death possibly have to share the proceeds of their estates. The immediate solution is the normalizing of prenuptial agreements to ensure minimal conflict when people part ways but that is an option out of the reach a majority of the country. Women’s organizations have launched campaigns to bring attention to the proposed law and there is speculation on whether a report from the Parliamentary Legal Committee’s report on whether the Bill is constitutional will make a difference because the Minister has the discretion to disregard such a report. Submissions can no longer be made, public consultations are done and what follows will be an exercise of power by the legislative branch of government.