New Marriages Act comes into operation
Zvamaida Murwira Senior Reporter
The new amalgamated and updated Marriages Act was brought into operation on Friday last week by President Mnangagwa, after he confirmed the Parliamentary approval in May.
The Act brings all marriage laws together, finally creating a legal path for a couple to have both a registered customary marriage transforming into a registered civil marriage and having customary marriages and civil marriages as different strands in the same Marriages Act instead of being unrelated legislation in a pair of laws.
The Act also enacts the Constitutional requirements that the minimum age for marriage is 18, and that the man and woman have to both freely agree to the marriage, whichever route is chosen.
While, besides the new minimum age, updates in the civil marriage are minimal, solemnisation of the customary marriage has been made a lot more significant, with both traditional chiefs and magistrates now being the marriage officers, showing the equality of the two routes.
Magistrates are now marriage officers for both types, and while chiefs have been elevated to being marriage officers for customary marriages, ministers of religion can still be appointed honorary marriage officers for civil marriages.
The coming into effect of the law was announced in a Statutory Instrument of a Government Gazette published last Friday. The new Act is Chapter 5:17 the SI noted.
President Mnangagwa signed the Marriages Act in May this year after a protracted debate in Parliament which lasted for almost two years particularly on payment of lobola in a customary marriage.
The final legal provision allows a traditional chief solemnising such a marriage to inquire over whether lobola was paid, as traditional leaders regard this as a crucial element in a customary marriage, although the Act does appear to allow such a marriage to be registered with the Registrar of Marriages without such a requirement.
Besides the two types of marriage, which already follow the same law when it comes to division of property if any marriage fails, the new Act introduces a civil partnership, created informally when a couple live together in a genuine domestic basis but without any marriage.
The Act provides 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.
Basically all unions, formal and informal, now breaking up see the assets created during that union split equally.
Under-age marriages and forced marriages see those involved, except the child or the forced partner, facing criminal charges and jail terms of up to five years.
The Act has also repealed the clause in the Criminal Law Code that criminalised the deliberate transmission of HIV, whether in or out of marriage. Parliament was told that this went against modern practice and that in any case had not been used.
Many couples in recent decades have wanted both a customary marriage and a civil marriage. With the laws split, the only way this was possible was for the couple to enter an unregistered customary union and then proceed to a civil union in court or in church.
This saw a dramatic fall in the number of registered customary unions, although most couples went through the unregistered union.
Under the new Act a couple can have both marriages registered, so long as the marriage is monogamous. A couple in a registered customary marriage can convert this into a registered civil marriage without much fuss.
The clause on lobola in customary marriages attracted protracted debate particularly in Senate that kept the Bill in Parliament for two years as Justice, legal and Parliamentary Affairs Minister Ziyambi Ziyambi disagreed with traditional leaders led by Council of Chiefs president Fortune Charumbira.
The Government wanted couples to have the option not to see financial transfers on marriage, in other words allowing lobola, but not requiring it in a customary union.
Minister Ziyambi argued that lobola could not be used as a barrier for two consenting adults to a union as that would violate their constitutional right to association.
But the chiefs felt it was fundamental to the nature of a customary marriage.
After intense debate and holding workshops to narrow differences, the formula chosen was to give the marriage officer solemnising a customary marriage the responsibility of asking, among other questions, if lobola was paid.
A couple fundamentally opposed to lobola have the option of a civil marriage, where there has never been such a requirement and the final Act does not require a registering officer to ask the lobola question, so a couple has the option of just having an unregistered customary union and using the legal provision of just registering this rather than appearing before a chief or magistrate.
Traditional leaders will also have to go through training in solemnising customary marriages, but the Act demands that within four months all sitting chiefs must be licensed to perform these ceremonies and future chiefs must be licensed within four months of taking office.
Ministers of religion can be licensed to be marriage officers for civil law marriages, where the law is very similar to most church laws so there is no conflict.
All this means that people can now be married under the customary law of their community, the civil law of Zimbabwe and the canon law of their religion.