Family unit, unions under spotlight as Bill gazetted

Farirai Machivenyika Senior Reporter
Government yesterday gazetted the Marriage Bill aimed at abolishing child marriages, promote gender equality and rights of persons in civil partnerships, among several provisions in line with the new Constitution.

The Bill will also harmonise marriage laws by repealing the Customary Marriages Act (Chapter 5:07) and the Marriage Act (5:11).

Secretary for Justice, Legal and Parliamentary Affairs Mrs Virginia Mabiza said the Bill seeks to protect the rights of women and children.

She said Section 40 protects the rights of women cohabiting with men without any recognised marriage.

“It seeks to protect the rights of women who live with men in a relationship that is not registered.

“Most of them are left empty-handed on dissolution of the affairs, a problem that the Bill seeks to address,” said Mrs Mabiza.

She, however, said civil partnerships are only applicable when the man’s official marriage is on a polygamous nature.

“This only applies to marriages that allow polygamy. It is not applicable to those in monogamous marriages,” she said.

Mrs Mabiza said if passed into law, the Bill will liberalise solemnisation of marriages.

“In the Bill, we have given powers to many institutions to solemnise marriages, including traditional leaders and leaders of apostolic sects.

“The new law seeks to promote registration of marriages,” she said.

The Bill was published in yesterday’s Government Gazette and according to the Memorandum of the Bill, it will take 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); 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 Bill will also take into account:   “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 18 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.”

Clause 3 of the Bill provides that the minimum age of marriage is 18 years and 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 sidestep the law by avoiding formal marriages and still have children being forced into relationships which are, to all intents and purposes, marriages,” reads part of the memorandum.

Clause 7 makes provision for the prohibited degrees of relationship between parties proposing to get married and these include a parent and his or her child, a step-parent and his or her stepchild, a brother and sister whether whole or half blood, an uncle and a niece or an aunt and her nephew, among others.

Persons that contravene this provisions will criminally liable for their actions.

Section 40 of the Bill provides for the rights of persons that are in a Civil Partnership.

The section describes a Civil Partnership as a, “(1) A relationship between a man and a woman who—(a) are both over the age of eighteen years; and

(b) have lived together without legally being married to each other; and (c) are not within the degrees of affinity or consanguinity as provided in section 7; and (d) having regard to all the circumstances of their relationship, have a relationship as a couple living together on a genuine domestic basis;

shall be regarded as being in a civil partnership for the purposes of determining the rights and obligations of the parties on dissolution of the relationship and, for this purpose, sections 7 to 11 of the Matrimonial Causes Act [Chapter 5:13] shall mutatis mutandis apply on the dissolution of any such relationship.”

“(2) The circumstances referred to in paragraph (d) may include—(a) the duration of the relationship;

(b) the nature and extent of their common residence; (c) whether a sexual relationship exists;

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;(e) the ownership, use and acquisition of their property; (f) the degree of mutual commitment to a shared life; (g) the care and support of children;(h) the reputation and public aspects of the relationship.”

Section 40 (3) also says no particular factor in relation to any circumstance may be regarded as necessary in determining whether or not the persons concerned have a civil partnership.

Further reads the section; “(4) whether a civil partnership exists is entitled to have regard to such matters and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case. (5) A civil partnership exists notwithstanding that one or both of the persons are legally married to someone else or are in another civil partnership.”