The Zimbabwean Constitution, being the supreme law of the land, provides for the need to ensure protection of the institution of the family. Section 26 sanctions against forced marriages and child marriages. Its main thrust however is on equality of spouses during the subsistence of their marriage or at dissolution of the marriage in so far as their rights and obligations are concerned. The Constitution calls for all government institutions and agencies to participate in the protection of the family.
Section 25 provides that ‘’The State and all institutions and agencies of government at every level must protect and foster the institution of the family…’’. Parliament is one such institutionof the state so tasked with the obligation to protect and foster the institution of the family. Different versions have explained and defined a family. They all narrow it down to a social arrangement based on marriage and the marriage contract with defined rights and obligations of parties thereto. It is therefore the marriage contract or, at least, the marriage arrangement that breathes life to a family. Once there is a family the Constitution bestows the state institutions with powers and mandate to oversee the family.
Just a couple weeks ago, social media enthusiasts were drawn to the Marriage Bill pending in Parliament following the news that the Bill is on the tail end of the enactment process. The Bill has been regarded as seeking to do justice between parties at the dissolution of either their marriage or civil partnership and to sanction against child marriages. While the Bill seems to be a positive step towards aligning marriage laws to the Constitution, it is section 40 of the Bill that has held me aback. The summary of section 40 is that if two people of majority age, not having legally married to each other, have stayed together as a couple they shall be regarded as being in a civil partnership. The legal implication is that at the termination of that partnership the rights and obligations of the parties shall be determined in terms of the Matrimonial Causes Act [Chapter 5:13], to which section 7- 11 shall apply.
The Bill recognises only two types of marriages; the civil marriage contracted in terms of the general laws and remains monogamous, and the customary marriage which, based on the customary laws of the community, is potentially polygamous. All customary marriages, including those existing before the Coming into force of the Act, should the Bill be signed by the President, must be registered. To that regard the Bill has countered the difficulties often faced by women in unregistered customary law unions in proving the existence of such unions. Such, if compliance is guaranteed, is a celebrated move.
The problem, however, comes when one tries to marry section 40 to the status of a civil marriage which is monogamous. Section 40(5) provides that ‘’ A civil partnership exists notwithstanding that one or both of the persons are legally married to someone else or are in another civil partnership marriage’’. I shall focus only on the civil marriage and ignore the customary marriage which is potentially polygamous. Put section 40(5) differently, if a man (X) who is part to a civil marriage with (Y) goes out of the matrimonial home or remains at the matrimonial home but maintains another household with another woman (Z), then X’s relationship with Z shall be regarded as a civil partnership and subject to section 7 to 11 of the Matrimonial Causes Act upon dissolution of the partnership. Section 7 to 11 of the Matrimonial Causes Act deals with the division of assets and maintenance of children and spouses upon a decree of an order of divorce, judicial separation and nullity of marriage or at any time thereafter. Section 40(5) of the Bill is therefore recognising Z as X’s spouse and she is being accorded with the spousal rights upon dissolution of the partnership as provided in the Matrimonial Causes Act.
Ironically, the Bill is silent on the rights of Y who is in civil marriage with X, not at the dissolution of the marriage, but during the subsistence of the marriage. In reverse to this one would be compelled to ask, what about the rights of Z at the death of X who had a civil marriage with Y and if such rights hold, how are they reconciled with those of Y who is the surviving spouse of X to the civil marriage. I shall deal with these puzzles separately below.
Laws are not made in Parliament just for the sake. At every turn when a new law comes into being, it comes either to develop or to do away with the existing law. To that regard, the rights and powers to develop the laws, I submit, must be exercised with great wary and caution lest we have lawmakers killing the law in the name of developing it. When I was perusing the Bill, I deciphered to no avail on what has been left to the spouse in a civil marriage besides the ring and ‘paper-based’ monogamous status of the marriage. Immediately It boggled my mind if the drafters ever contemplated a situation whereby Y (wife to the civil marriage) is suing Z (wife/partner/spouse to the civil partnership) for adultery damages and at the same time Z is suing husband X for unjust enrichment and/or for sharing of property? Assuming the two claims are mounted in the same court, is the court going to succeed in its duty to dispense justice between the three parties without aiding collapse of the civil marriage, lest we forget that as the third arm of government it is also obliged to protect the family. If such is the situation, no doubt recognising civil partnerships is an invasion of the marriage institution.
Is the adultery delict going to survive and serve its purpose in the looming civil partnerships’ era? Is the Bill not ringing the last dismissal bell to the delict of adultery? One has to remember these lines from Zimnat Insurance Co (Pvt) Ltd v Chawanda 1990 (2) ZLR 145 (S);
“If the law is to be a living force it must be dynamic and accommodating to change. It must adapt to fluid economic and social norms and values and to altering views of justice. If it fails to these needs and is not based on human necessities and experiences of the actual affairs of men rather than a philosophical notion, it will be one day cast off by the people because it will cease to serve any useful purpose’’.
Perhaps similar lines to these, in essence, are found in P v D HH-03-19;
‘’In associating myself with the above conclusion, I am mindful of the waning interest in the delict from some quarters of the community. It is my view that instead of court leading the crusade to abolish the delict, society through evolution must lead the process. As value systems change it is inevitable that claims for adultery damages may be abolished as archaic and no longer providing the intended protection for the marriage institution. It is only when public views have evolved to such level that courts may be called upon to pronounce the end of such a delict.’’
The later coming almost after two decades, it speaks the same voice as the former judgement howbeit in a different tone. A fusion of judgments like these can give nothing but a nuclear that, if not handled properly, will one day detonate on the marriage institution. While the courts have refused to lead the chant against abolition of adultery delict, Parliament seems to have taken a stunt by recognition of civil partnerships regardless of an existing civil marriage. It may be argued that this is not what the Bill is aimed at achieving but it remains inevitable, at least it ropes in the courts through interpretation. The courts have traditionally come hard on third parties who interfere with one’s marriage and such defilement of matrimonial home attracted punishment of the paramour. It remains to be seen now what the courts’ approach will be now given the need to also respect and protect the gullible third.
The Bill does not contemplate a situation where by the civil partnership’s dissolution is occasioned by death of either party. At that juncture the Matrimonial Causes Act will not apply as inheritance and succession laws will take over. This causes no problem if the partnership had no ties to third parties. But, where, for instance, it is the husband X who died leaving behind a widow Y (civil marriage) and another wife Z (civil partnership), does that mean Z is now surviving spouse number 2 and entitled to inherit from the deceased husband’s estate? Alternatively, is she a surviving spouse for the purpose of inheritance and succession?
Succession rights are defined in the Deceased Estate Succession Act [Chapter 6:02] and the Administration of Estates Act [Chapter 6:01]. The rights accrue only in respect of surviving spouses and children of the deceased person. Section 68(3) of the Administration of Estates Act provides that no unregistered customary marriage shall be recognised for purposes of inheritance if,
“when it was contracted, either of the parties was married to someone else in accordance with the Marriage Act [Chapter 5:11] or the law of a foreign country under which persons are not permitted to have more than one spouse’’.
If this provision is not repealed, then section 40(5) of the Marriage Bill will only serve its purpose when parties part their ways whilst alive.
Confusion is stirred up more when one considers section 5 of the Bill in light of section 40. Section 5 denounces contracting of a marriage during the subsistence of a civil marriage. Section 40 overrides section 5 in so far as it recognises a civil partnership even when either party is in a civil marriage. Legally, a husband of a woman in a civil marriage cannot marry another wife while such marriage still subsists but can however contract a civil partnership with another woman. Ironically, the other woman can actually enter into a recognised civil partnership with a third part’s husband who is in a civil marriage but cannot be recognised under inheritance and succession laws. Such is the confusion.
No finer conclusion can be made from the above than that the Marriage Bill is an invasion to the institution of the marriage. This is a good pointer of the falling down of the pillars of the institution of the family and perhaps a threat to inheritance and succession laws. The big question becomes; can justice be attained through injustice? The Bill, if viewed from a different circumspection, may be tipped progressive. If focus is put on women, to the woman tracking on the overbank of the river it is a great cause to celebrate but to the woman in civil marriage it has taken much from her.
LLB (Hons) University of Zimbabwe
Gutu and Chikowero.
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