20 August 2019
Dear Clerk of Parliament
On behalf of the 814 Church denominations and parachurch bodies, representing over 4.5million Christians and citizens in Zimbabwe, we hereby make submissions regarding the proposed Marriages Bill 2019.
The title of the Bill is, “Marriages Bill, 2019”
- The Bill is about marriages. This is consistent with the Bill’s Memorandum which states that, “There will be one Act of Parliament governing marriages in Zimbabwe.”
- There are three types of marriages in Zimbabwe, the Marriage Act [Chapter 5:11], the Customary Marriages Act [Chapter 5:07] and the Unregistered Customary Law Union. It is these marriages which should be covered by the Bill.
- Any other relationship or living arrangement which is not a marriage should have no place in the Marriages Bill. Civil Partnerships are not marriages. They therefore should not be accommodated in the Bill.
- The Evangelical Fellowship of Zimbabwe agrees with the following in the Bill:
- Clause 3 (1): That no person under the age of (18) eighteen years may contract a marriage or enter into an unregistered customary law union. We say NO to child marriages.
- Clause 4: That each party to the marriage must give their free and full consent to the marriage.
- Clause 6: That parties to any marriage have equal rights and obligations during the subsistence, and at dissolution of the marriage.
- The repeal and replacement of the Customary Marriages Act [Chapter 5:07] and the Marriage Act [Chapter 5:11] and their replacement with one Act of Parliament governing marriages in Zimbabwe.
- Clause 9: The appointment of Chiefs as Marriage Officers in Customary law marriages.
- Clause 16: The registration of unregistered customary law unions.
AREAS REQUIRING ATTENTION
- The Bill does not cover some significant issues arising out of marriage.
- The Bill should deal with the property, custody and guardianship rights arising from the three types of marriages.
- The Bill should deal with inheritance issues in respect of the three types of marriages. In this regard the distinction between section 3A of the Deceased Estates Succession Act [Chapter 6:02] which provides that: “The surviving spouse of every person who, on or after 1st November 1997, dies wholly or partly intestate shall be entitled to receive from the free residue of the estate, the house or other domestic premises in which the spouses or the surviving spouse, as the case may be, lived immediately before the persons death” which applies to intestate succession in respect of the Marriage Act [Chapter 5:11] and section 68 (2) of the Administration of Estates Act [Chapter 6:01] which provides that:
“Where the deceased person was a man and is survived by two or more wives, whether or not there are any surviving children; (i) Where the wives lived in separate houses, each wife should get ownership of or, if that is impracticably, a usufruct over the house she lived in at the time of the deceased’s death. (ii) Where the wives live together in one house at the time of the deceased person’s death, they should get joint ownership of or, if that is impracticable, a joint usufruct over the house.(iii) Where the deceased person is survived by one spouse and one or more children, the surviving spouse should get ownership of or, if that is impracticable, a usufruct over the house in which the spouse lived at the time of the deceased’s death.” Which applies to customary marriages, should be removed.
- Clause 16 provides that a marriage contracted solely according to customary law and not solemnised in terms of this Act must be registered by the parties to such marriage within three months of the date of the union. This implies that neither party can register the union without the consent of the other. It is proposed that either party should be allowed to register the union after meeting the requirements set out in Clause 16 (2).
- The Bill does not apply the Matrimonial Causes Act [Chapter 5:13] to customary law unions. There is no reason why the Matrimonial Causes Act [Chapter 5:13] which applies to the Marriage Act [Chapter 5:11] and the Customary Marriages Act [Chapter 5:07] should not apply to customary law unions in light of Clause 6 of the Bill.
- The Bill does not define when a customary law union comes into being. This should be included in the Bill. In this regard Justice Tsanga’s judgment in Nathan Hosho v Lilian Hasisi HH491-15 is instructive. The learned judge held that payment of ‘roora’, ‘lobola’ remains the most cogent and valued proof and indicator of a customary union or marriage particularly when it has been formally registered. The learned judge further observed that:
“For a marriage to qualify as a customary marriage, certain cultural practices which involve payment of roora/lobola are attendant upon its formation. Payment consists of a lump sum payment of money (called rutsambo among the Shona) as well as cattle though increasingly the money equivalent is paid in today’s society.”
- In an earlier judgment, in the case of Calisto Kabera v Josephine Gunda HH192-99 Justice Chinhengo held that a customary law marriage is contracted when the husband has either agreed to pay roora in terms of an agreement between him and his in-laws or when he has actually paid roora and in either case, he has been accepted as a son-in-law. Roora is in fact rutsambo at the very least.
- The differences in the appointment of Chiefs and Ministers of Religion as Marriage Officers and the revocation of their designation as Marriage Officers (Clauses 9 and 13) require attention especially when read together with Statutory Instrument 866/1979 (section 3 (3) and (4) of which should be repealed) and Clause 46 (2) (C).
- The conflict between the explanatory note in Clause 32 and the actual Clause 32 should be removed so that Ministers of Religion can receive gifts by reason of anything done by him/her as a Marriage Officer.
- The definition of “young person” in section 61 of the Criminal Law (Codification & Reform) Act [Chapter 9:23] should be amended to mean a boy or girl under the age of eighteen years.
- The definition of “marriage” in the Matrimonial Causes Act [Chapter 5:13] should be expanded to include marriages contracted in terms of customary law.
- The Bill should provide for the dissolution of a customary law union whether registered or unregistered.
As Christians we have a duty to promote and protect the institution of Marriage as a divine plan of God our Creator. While we live in a secular world with legislation made for all citizens, it is our civic duty to have these laws informed by our faith and values as a people. In any democracy the majority must echo their views while recognizing the minorities too.
Freedom is a great reality and it comes with Responsibility.
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