MARRIAGES BILL, 2019

MARRIAGES BILL, 2019

Memorandum

This Marriages Bill, 2019, repeals and replaces the current Customary Marriages Act [Chapter 5:07] and the Marriage Act [Chapter 5:11]. There will be one Act of Parliament governing marriages in Zimbabwe and the new Act will also update the law in line with the Constitution. The following are the main Constitutional precepts which the Marriages Bill takes into account—

• gender equality (section 3(1)(g) of the Constitution);
• recognition of the rights of women, youths and children (section 3(2)(i)(iii) of the Constitution);
• the recognition of the rights of cultural groups (section 3(2)(i)(i));
• the preservation of cultural values and practices which enhance the dignity, well-being and equality of people (section 16(1));
• section 26 of the Constitution with respect to the requirement of free and full consent to marriage by the intending spouses; the ban on the pledging of children in marriage; the equality of rights and obligations of spouses during marriage and at dissolution; provision for the protection of any children of a marriage upon the dissolution of marriage whether by divorce or on death;
• the paramountcy of the best interests of the child (section 19(1) and 81(2) of the Constitution), a child being a person under the age of 18 years (section 81(1) of the Constitution);
• the right of any person who has attained the age of eighteen to found a family, not to be compelled to enter into marriage against their will and the prohibition of same sex marriages (section 78 of the Constitution);
• protection of children from sexual exploitation (section 81(1)(e);
• the supremacy of the Constitution which, in section 2(1), invalidates any law, practice, custom or conduct which is inconsistent with the Constitution.

  In brief therefore, the Bill re-enacts a marriagelawthatcomplies with these various provisions of the Constitution. There will be one Act of Parliament to deal with the creation of marriages.

  In more detail, the Bill provides as follows:
  Clause 1 sets out the short title of the Bill and provides for the coming into

  operation of the Bill on a date to be notified by the President in the Gazette.

  Clause 2 defines terms used in the Bill and new and significant among them are “betrothal”, “civil marriage”, “civil partnership” which is more fully explained in clause 40 of the Bill, and “marriage”. The term “marriage” which encapsulates both “civil marriages” and “customary law marriages” refers to marriages formally solemnised or registered in terms of this Bill. This is to distinguish them from any other union which is not so solemnised or registered. The definition of “marriage officer” has been widened to include Chiefs, in their areas of jurisdiction, with respect to customary law marriages. The rest of the terms are fairly straight-forward.

  Part II of the Bill deals with general provisions governing marriage.

  Clause 3 provides that the minimum age of marriage is 18 years. In order to ensure the protection of minors, the minimum age requirement has been extended to unregistered customary law marriages and to civil partnerships. This guards against attempts to side-step the law by avoiding formal marriages and still have children being forced into relationships which are, to all intents and purposes, marriages.

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Marriages

Clause 3 also explicitly outlaws the marrying, pledging or betrothal of children by any person and doing so is an offence which is aggravated in circumstances where the contravention is by a parent or a person in the role of a parent.

Clause 4 requires that the free and full consent of parties to a proposed marriage be given before the marriage is solemnised.

Clause 5 states that a civil marriage is contracted in terms of the general law of Zimbabwe and is monogamous. No other marriage can be contracted by a person during the subsistence of a monogamous marriage. A customary law marriage is potentially polygamous.