NEW MARRIAGE ACT IN ZIMBABWE

PURPOSE OF THE ACT

The new Marriage Act repealed the Customary Marriages Act (Chapter 5:07) and the Marriage Act (Chapter 5:11).There is now one Act of Parliament governing all marriages in Zimbabwe.Thus,the new Marriage Act consolidated the laws relating to marriages.The Marriage Act also amended the Child Abduction Act (Chapter 5:05),the Children’s Act(Chapter 5:06),the Guardianship of Minors Act (Chapter 5:08),the Maintenance Act(Chapter 5:09),the Matrimonial Causes Act(Chapter 5:13),the General Law Amendment Act (Chapter 8:07) and the Criminal Law (Codification and Reform) Act (Chapter 9:23)

KEY PROVISIONS OF THE MARRIAGE ACT

1. 1. The Marriage Act through section 3 outlawed child marriages.No person under the age of eighteen years is allowed to contract a marriage or enter into an unregistered customary law marriage or a civil partnership.
2. 2. Any person other than the child, who contracts , solemnizes, promotes, permits, allows or coerces or aids or abets the contracting , solemnizing, promotion, permitting, allowing or coercion of the marriage, unregistered customary law marriage or civil partnership , or the pledging, promising in marriage or betrothal of a child shall be guilty of an offence and may be imprisoned for a period of up to five years
3. 3. Section 4 of the Marriage Act provides that parties to a marriage must give their free and full consent to the marriage
4. 4. Chiefs are now marriage officers in respect of customary law marriages in the district in which they hold office.This is a welcome development particularly for the rural population.
5. 5. There must be present at the solemnisation of every customary law marriage , in addition to the marriage officer and the parties to the marriage,two witnesses , one for each party to the marriage , being a relative who,under the customary law of the community concerned, is recognized as the primary witness for the marriage
6. 6. Unregistered customary law unions must now be registered with the Registrar of Marriages within three months of the date the union was entered into. Being in an unregistered customary law union is now a matter of choice.
7. 7. In terms of section 10 of the Marriage Act heads of embassies of Zimbabwe in a foreign State or territory or of a diplomatic or consular mission in a foreign State or territory are now marriage officers whilst on duty at that embassy or mission in respect of marriages where one of the parties to the marriage is a Zimbabwean citizen or permanent resident. This is good news for Zimbabweans in the diaspora.
8. 8. A person who intends to marry outside Zimbabwe in accordance with the law of another country may apply to the Registrar for a certificate of no impediment / non-marriage to the proposed marriage. This again is welcome news to Zimbabweans in the diaspora. In order to obtain a non- marriage certificate the applicant must submit to the Marriage Registrar the following documents:
9. (i) Original birth certificate
10. (ii) A copy of the information page in their passport
11. (iii) A copy of the page in their passport last stamped by Zimbabwean Immigration
12. (iv) A letter/affidavit stating the applicant’s full names, passport No, physical address and that they are applying for a non-marriage/certificate on non-impediment as well as the full names and ID No of the person they will be authorising to collect the certificate on their behalf.
13. (v) The aforesaid documents must be stamped by the Zimbabwean embassy in the country where the applicant will be applying from. The embassy will issue the applicant with a receipt which must be submitted to the Registrar.
14. 9. Marriage officers are prohibited from demanding or receiving any gift or reward by reason of anything done or to be done by them as a marriage officer
15. 10. Section 41 of the Marriage Act introduced civil partnerships which are defined as a relationship between a man and a woman who:
16. (i) Are both over the age of eighteen years; and
17. (ii) Have lived together without legally being married to each other ;and
18. (iii) Are not within the degrees of affinity or consanguinity as provided in section 7: and
19. (iv) Having regard to all the circumstances of their relationship, have a relationship as a couple living together on a genuine domestic basis
20. 10.1. The circumstances referred to in paragraph 10 (iv) above may include-
21. (i) The duration of the relationship;
22. (ii) The nature and extent of their common residence:
23. (iii) Whether a sexual relationship exists;
24. (iv) The degree of financial dependence or interdependence, and any arrangements for financial support between them;
25. (v) The ownership , use and acquisition of their property;
26. (vi) The degree of mutual commitment to a shared life;
27. (vii) The care and support of children
28. (viii) The reputation and public aspects of the relationship

EFFECT OF S 41 OF THE MARRIAGE ACT

Our law now recognizes and protects civil partnerships. A cohabiting couple which meets the criteria set out in the said section is said to be in a civil partnership. A spouse who is civilly married and has an extra marital relationship which meets the requirements set out in section 41 of the Marriage Act, though committing adultery, is said to be in a civil partnership. In other words in the eyes of the Act , their adulterous relationship is a civil partnership.

DISSOULTION OF MARRIAGES/CIVIL PARTNERSHIPS

Section 45 of the Marriage Act provides that no marriage solemnised or registered or deemed to be solemnised or registered in terms of the Act shall be dissolved except by order of court of competent jurisdiction. This means that a customary law union which is registered in terms of section 17 of the Act can only be dissolved by order of a competent court.Such a union now has the same status as a solemnised marriage. A marriage now means a marriage solemnised , registered or recognised as such in terms of the Marriage Act. The provisions of sections 7 to 11 of the Matrimonial Causes Act (Chapter 5:13) now apply on the dissolution of any marriage and any civil partnership

DIVISION OF ASSETS UPON DISSOLUTION OF MARRIAGE OR CIVIL PARTNERSHIP

Upon the dissolution of any marriage or civil partnership,section 7 of the Matrimonial Causes Act (Chapter 5:13) applies. The said section provides as follows:

1. (1) Subject to this section, in granting a decree of divorce, judicial separation or nullity of marriage, or at any time thereafter, an appropriate court may make an order with regard to—
2. (a) The division, apportionment or distribution of the assets of the spouses, including an order that any asset be transferred from one spouse to the other;
3. (b) The payment of maintenance, whether by way of a lump sum or by way of periodical payments, in favour of one or other of the spouses or of any child of the marriage.
4. (2) An order made in terms of subsection (1) may contain such consequential and supplementary provisions as the appropriate court thinks necessary or expedient for the purpose of giving effect to the order or for the purpose of securing that the order operates fairly as between the spouses and may in particular, but without prejudice to the generality of this subsection—
5. (a) Order any person who holds any property which forms part of the property of one or other of the spouses to make such payment or transfer of such property as may be specified in the order;
6. (b) Confer on any trustees of any property which is the subject of the order such powers as appear to the appropriate court to be necessary or expedient.
7. (3) The power of an appropriate court to make an order in terms of paragraph (a) of subsection (1) shall not extend to any assets which are proved, to the satisfaction of the court, to have been acquired by a spouse, whether before or during the marriage—
8. (a) By way of an inheritance; or
9. (b) In terms of any custom and which, in accordance with such custom, are intended to be held by the spouse personally; or
10. (c) In any manner and which have particular sentimental value to the spouse concerned.
11. (4) In making an order in terms of subsection (1) an appropriate court shall have regard to all the circumstances of the case, including the following—
12. (a) The income-earning capacity, assets and other financial resources which each spouse and child has or is likely to have in the foreseeable future;
13. (b) The financial needs, obligations and responsibilities which each spouse and child has or is likely to have in the foreseeable future;
14. (c) The standard of living of the family, including the manner in which any child was being educated or trained or expected to be educated or trained;
15. (d) The age and physical and mental condition of each spouse and child;
16. (e) The direct or indirect contribution made by each spouse to the family, including contributions made by looking after the home and caring for the family and any other domestic duties;
17. (f) The value to either of the spouses or to any child of any benefit, including a pension or gratuity, which such spouse or child will lose as a result of the dissolution of the marriage;
18. (g) The duration of the marriage; and in so doing the court shall endeavour as far as is reasonable and practicable and, having regard to their conduct, is just to do so, to place the spouses and children in the position they would have been in had a normal marriage relationship continued between the spouses.
19. (5) In granting a decree of divorce, judicial separation or nullity of marriage an appropriate court may, in accordance with a written agreement between the parties, make an order with regard to the matters referred to in paragraphs (a) and (b) of subsection (1).