So the new Marriage Act (Marriages Act [Chapter 5:15]) is out and to say it has torched a storm is an understatement. A lot of people seem to have focused on a few excerpts which they contend are immoral but the truth is that given the general trend around the world the new law was inevitable. This is because, despite a few controversial clauses which are making the headlines, the new law has a lot of positives including protecting vulnerable children against forced marriages and women against property dispossession upon the death of a partner or separation.
To help you make your own judgement on whether the law is good or bad we have created a summary of the Act in plain English that you are likely to understand. The summary aims to cover the most important aspects of the Act and is not necessarily comprehensive.
- The law explicitly states that the age of marriage is now 18. Prior to teenagers could get married if they were at least 16 years old and had the permission of their guardians or parents. Now it is a crime to force someone into a marriage or marry off someone who is below this age limit.
- Those getting married have to consent to the marriage. In other words the people being married have to freely give their permission and agree to be married otherwise their marriage is void
- The new law states that there are now three types of marriages:
- Civil marriages which are monogamous and between a man and a woman. This means that you can only enter into a single civil marriage at any given time. You cannot marry two people at the same time (bigamy/polygamy) under this law. If you wish to get married again you have to get divorced.
- A registered customary marriage which is where you get married according to your traditional customs. There is a chance, depending on your custom, that you can get married to more than one person (polygamy).
- A qualified marriage is where you are married according to custom but the marriage is not yet registered. So for example, if you pay lobola for your wife but have not yet informed the government of this development.
- This is because all customary marriages have to be registered now. The government has to be informed that you have entered into a customary marriage. You must inform the government within three months of you getting married otherwise your marriage will not be recognised. Those who were married before the Act was passed have 12 months to inform the government that they are customarily married. As always customary marriages are potentially polygamous
- Even if a customary marriage is not registered it does not mean that the union is invalid. Those who are part of this marriage still get the same rights as if they were married.
- The issue that has many people in a twist is the issue of civil partnership (also known as kubika mapoto). The new law recognises that some people can be living as defacto husband and wife even when they are not legally married. More and more people are entering into such relationships the world over but traditionally such relationships have been stigmatised. The new law essentially recognises civil partnerships for what they are, de facto marriages. The parties to such a marriage are not legally recognised as married but they still get the same rights as a husband and wife would.
- The law explicitly states that all types of marriage are equal. The only real reason for a civil marriage is to ensure that there is no bigamy but people in civil marriages can still enter into civil partnerships. This is what has angered moralistic individuals who argue that it undermines the institution of marriage as it takes away the power of wives to protect their marriages
- The law says lobola is compulsory if one is married in terms of customary law because lobola is a recognised customary union formality. You cannot claim to be customarily married if there is no lobola paid. This has always been the case so not many people are surprised.
- Lobola is not required for people to be married in a civil union. All you need are two consenting adults. One female and one male.
- The law states that both men and women have equal rights in a marriage. Again this is something that has always been the case.
- Divorce law including the Matrimonial Causes Act applies to all marriages including civil partnerships (kubika mapoto). It does not apply to an unregistered civil marriage again this not unexpected as customary marriages have always been terminated using the “gupuro” principle.
NB There have been fringe interpretations of this law with some people peddling loopholes that now exist. The truth is the law is simply keeping up with the times. On the issue of civil partnerships, it is just simply codifying what is already being practised. A lot of women have lost property upon the passing of their civil partner with civil marriage partners and relatives of the husband often looting and taking everything. The new law is more compatible with the Inheritance Act which also touched a storm by ensuring that even illegitimate children could inherit their father’s estates.