Unpacking the Marriages Bill

Andrea Dracos
There has been pandemonium regarding the import of the Draft Marriages Bill, 2017 (hereinafter referred to as “the Bill’’) which was recently approved by the Cabinet.

Its main objectives are highlighted in the preamble but for purposes of this article, protest has been raised regarding this particular object — the recognition of civilpartnerships.

Sentiments expressed in the mainstream and social media suggest that the Bill is a threat to the very existence of the marriage institution, particularly the rights flowing from the civil marriage sanctioned under the Marriage Act [ Chapter 5:11], which is monogamous.

Further argument has been suggested that it affords rights and protection to “concubines” or “small houses” (for want of a better expression) thereby eroding the monogamous nature of the civil marriage and would result in ladies or men targeting rich spouses for personal enrichment.

The above sentiments, which have triggered this commentary, are not only tendentious but both fallacious and totally misleading. The Bill does not in any way suggest what has been propounded in media circles.

A simple reading of the Bill would inform one that it actually acknowledges the very existence of the civil marriage and buttresses its protection under Section 5 (1) which provides as follows: “A civil marriage is monogamous, that is to say, it is the lawful union of two persons to the exclusion of all others and no person may contract any other marriage during the subsistence of a marriage under the general law.’’

Notwithstanding the above provision, Section 40 of the Bill prescribes the realisation of civil partnerships. The requirements for the existence of one are that, “both parties must be 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’’.

The requirements as set out above are clear. The catchword is that for there to be a civil partnership parties must have lived together without being married to each other and must have a relationship of a couple living together on a genuine basis.

The Black’s Law Dictionary Eighth Edition by Bryan A. Gardner et al on page 277 defines living as cohabitation which is the fact or state of living together especially as partners in life.

This is one of the essential requirements meant to be satisfied. It curbs or guards against the “small houses” as raised by those who have protested. There must be in existence a real and clear intention to found a family and living as such as this would demonstrate genuineness.

The mischief behind the above provision is to afford protection to women in particular, who engage in a civil partnership with their “spouse” where there is in existence a valid marriage under the Marriages Act [Chapter 5:11].

This state of affairs continues to obtain in cases were, for instance, the husband and wife married under the monogamous marriage [Marriages Act Chapter 5:11] separate (not divorce), and actually are living apart, with the other or both partner (s) having moved on and now in another relationship. The marriage remains extant, although on paper, but not in practice. It is these circumstances that the legislature has sought to afford the new partner some sought of protection.

If not, it would work an injustice and hardship on the lady who entered into a partnership yet she contributed towards the accumulation of property.

Indirectly, it would benefit the woman who is married, who has not made discernible contribution towards the property involved. It guards against people investing in paper marriages, only to surface after the dissolution of the civil partnership, yet they long abandoned the former spouse.

The above reasoning is fortified by the considerations that are set out under Section 40 (2) of the Bill , which include: the duration of the relationship, the nature and extent of their common residence, the degree of mutual commitment to a shared life, the reputation and public aspects of the relationship. Certainly, these considerations elbow out any potential abuse by “small houses”.

In the premise, one would assert that the Bill in introducing the concept of civil partnership is not in any way sanitising or protecting “small houses”. They would not qualify under the stringent requirements as set out under Section 40 of the Bill read as a whole which would demand, among other things, for parties to have lived or stayed together on a genuine domestic basis; which would mean on a real and clear intention to found a family and living as such.

With “small houses” the man and woman live separately and without a clear intention of founding a family and living as such. In that regard, that is not what is contemplated.

What the legislature has done is to codify the common law, and additionally clearly circumscribe the considerations that the court ought to take, to avoid potential abuse.

In that respect, the spirit under Section 40 of the Bill must be openly welcomed and the Government must be applauded for same as it is a realisation of the challenges being faced in contemporary Zimbabwe. (See generally: Bhebhe v Estate Bhebhe & Others 2012 (1) ZLR 521 (H), Ndlovu v Ndlovu 2011 (1) ZLR 81 (H), Sibanda v Sibanda 2002 (1) ZLR 622 (H) Makovah v Makovah 1998 (2) ZLR 82 (S).

The writer is final year law student at Midlands State University, Gweru. Assisted by David Peneti, final-year law student at Midlands State University, Gweru.

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