Marriage Bill leaves women vulnerable

Multiple gaps in the Marriages Bill is likely to leave women in Zimbabwe vulnerable since the country recognises both civil and customary marriages.

The Marriages Bill, if signed into law, will replace the Customary Marriages Act and the Marriage Act, meaning that marriages in Zimbabwe in their varieties will now be governed by a single piece of legislation.

 Zimbabwe’s chiefs in the senate managed to bargain their space as they sought to be included as marriage officers.

This is, however, a positive development since the traditional leaders are the custodians of our culture and those holding such office will see the protection and promotion of customary marriages.

The Bill sought to provide a plethora  of positive legal developments particularly the domestication of United Nations  Convention on the Elimination of Discrimination Against Women , an international instrument to which Zimbabwe is a State party, recognition of gender equality, recognition of civil partnerships, recognition and protection of the Best Interest of the Child Principle in every matter concerning the child and recognition promotion of consent as one of the cardinal element for the conclusion of a valid marriage not in Zimbabwe alone but across all civilised and democratic communities which protect and promote human dignity and equality.

The Civil Partnership, an element which is  now under section 41 of the proposed Bill once created  tension and debate within and across society when it was interpreted and construed to mean co-habitation by different groups in our society.

However, this was more of a religious interpretation instead of a reasonable  legal argument.

 The law by nature has to cater for the needs of the society including those of the minority groups.

An analysis of the Civil Partnership union as provided in the new Bill exhumes an interpretation challenge which can negatively affect women in such unions when seeking  legal recourse on the dissolution of the union.

Section 41(2)(d) of the Bill  stipulate that to establish the existence of  a relationship (civil partnership) as a couple, “The circumstances referred to in paragraph (d) may include”, the problematic statutory interpretation and challenge of this subsection 2 is the use of the word “May”.

The word “may” in interpretational  sense provides for a directory provision, whereas the best word there was supposed to be peremptory or obligatory, the word “shall”.

This provision will create challenges to women due to the inequality gap and poverty which the generality of our women live in.

 They are the ones who in most cases will bear the onus to prove if there was indeed a valid Civil Partnership in most disputes.

The provision should have been sensitive to this reality and at least create a self-executing provision which will help them to litigate with such a heavy burden of proof which women in most cases are unable to dispense with.

Such an oversight by the legislature for failure to take cognisant of key interpretive words in the Bill by using the “may” instead of word  ‘shall’ which gives a peremptory provision or which obligatory will subsequently unnecessarily burden our courts on  determining whether there was really a civil partnership which existed between  parties during the subsistence of their partnership.

Section 41(2)(f) creates another complication on proving if there was a valid Civil Partnership.

The section reads that a person who alleges that there was a civil partnership should prove the existence of the  degree of mutual commitment to a shared life.

The provision of “the degree of mutual commitment to a shared life” is vague in our social construct as Zimbabweans with cultural diversity.

This creates challenges for the courts in determining what really is “the degree of mutual commitment to a shared life”.

In most cases if not in all cases the onus still rests with the wife who alleges that she was in valid civil partnership.

The legislature should be circumspect in creating legislation to that end that it does not offload its law making function to the courts.

The court’s duty should be that of interpreting the law instead of making the law.

Section 41(2) (h) provides that any party who alleges the existence of the civil partnership should prove “the reputation and public aspects of the relationship”.

This is mere invitation of public opinion in legal matters which is alien to legal proceedings.

Not everyone would want to make his/her relationship public so that the public aspects can be adequately ascertained.

This means also one would want someone to testify of the public aspects and those would be mostly relatives whose opinion may be driven by passion, hate and or jealousy. 

Why invite public aspects when the relationship was concluded freely by two consenting adults?

The fundamental epistemological question is what is the litmus test for “the reputation and public aspects of the relationship”?

How will the court formulate a test or formula to determine that is reasonable, justifiable and practical to ascertain that in a democratic society based on human dignity, equality and freedom as required by our national Constitution?

How a court of law will measure “the reputation and public aspects of the relationship” and “the degree of mutual commitment to a shared life”?

There is likelihood of real problems for women in coming of this Bill into law if the enumerated issues are not legally ironed out by the legislature.  

The worst part of these vague and subjective provisions will affect women because in most cases our disadvantaged women will give torrid time in courts to prove that they were really in valid civil partnership.

Section 26(c) of the Constitution stipulates that the State must take appropriate measures to ensure that there is equality of rights and obligations of spouses during marriages, their subsistence and on dissolution.

A closer analysis of the Bill shows that it does not clearly define equality which long marginalized Zimbabwe women and girls wish and want to enjoy especially with regards to property and proprietary rights during the subsistence of their marriages.

The more disheartening development for women in this Bill is that it mentions property rights on the dissolution of marriages without mentioning how property will be handled during the subsistence of marriages.

This is insufficient especially in the modern families which are somehow materialistic.

The law should unequivocally spell out rights in family property to mitigate domestic violence and abuse.

What is very disturbing in this Bill is that it’s putting more emphasis and discussion on property rights after marriage.

It’s now time for the law to push for substantive equality while people are still in their marriages.

It’s as good as wishing someone to rest in peace when he in fact lived a tormenting life.

According to this Bill, from a proprietary perspective women’s rights are only considered in divorce and dissolution of marriages, a development which shows that the law still perpetuates inequality which for decades, Zimbabwean women were fighting for.

In coming up with this Bill, the legislature should have made  it clear that  the de facto roles of women in Zimbabwe  must not be ignored and that forcing a model of formal equality onto our society, may just reinforce the existing unequal roles and hamper the achievement of true and substantive equality.

Another challenge which this Bill creates is its failure to embrace polygamy.

Polygamy is an inherent nature of most African marriages.

If the Bill fails to comprehensively address this, it will be somehow alien to the community it seeks to serve.

This is discrimination on the basis of culture yet the Constitution provides for the right to culture.

The South African Supreme Court of Appeal (SCA) in the famous case of Ngwenyama v Mayelane, held that whatever protection is afforded to women married according to customary law equally applies to women in polygamous marriages.

Section 5(5) stipulates that all marriages registered in terms of this Act are equal, but the act make it difficult in section 5(4) for a polygamous marriage to be registered, yet polygamy is part of the African culture. 

Celebrating this Bill means gradual elimination of African culture and gravitating towards the western way of life.

Although the Bill accept a that customary union is polygamous or potentially polygamous, a close analysis gives the presumption that our legislature gave in to some religious beliefs and frowned upon polygamy in coming up with this Bill.

But the law should cater for everyone by providing choices to its heterogeneous population as much as it does not offend the bill of rights.

Any failure to legally recognise and register polygamous unions in Zimbabwe will render the law a naked piece of legislation which does not offer security to the women thereby furthering the continued discrimination and inequality of women.

The Bill is a clear jurisprudential failure by the legislature in developing the living customary law for Zimbabwe where law emerges from what people do, to be more accurately, where the law originates from what people believe they ought to do, rather than from what legal pundits contemplate they should do or believe.

The Bill is failing adequately to recognise unregistered customary marriages.

In 2013, the Registrar General’s office revealed that over 80% of marriages in Zimbabwe were not registered.

So given such statistical data, if the Bill provides that an unregistered customary marriage is not a marriage it simply means that it’s worsening the position of women in Zimbabwe because naturally they are the ones who are suffering the consequences of divorce and dissolution of marriages.

Despite the fact that the Bill has done its best in granting some opportunities to women in Zimbabwe, the inconsistencies, vague provisions and some legal gaps  will see women still stuck in the same position of inequality, abject poverty, discrimination and violence in marriages. 

 

Zororai Nkomo is a Zimbabwean journalist and a lawyer who writes in his own personal capacity and can be contacted on zoronkomo@gmail.com.