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Harmonise Zimbabwe-s marriage laws before changing marriage certificates
Sibusisiwe Ndlovu-Bhebhe
May 02, 2012

In the latter half of 2011 government through the ministry of Justice and legal affairs announced that it was making moves to harmonise Zimbabwe-s long criticised marriage laws. This would see every Zimbabwean marriage being recognised under one act and the same rights and limitations being applied to all marriages by the proposed law. Zimbabwe-s law currently recognises three kinds of unions, the civil marriage, the registered customary marriage and the unregistered customary union and these have brought more confusion than the freedom of choice to users.

In its move to review these laws the ministry stated that research was being conducted in selected districts of Zimbabwe to determine the type of marriages prevalent in Zimbabwe and identify the challenges which communities face in registering marriages. While the results of this research are yet to be revealed, one is compelled to assume that the unregistered customary unions may top the list. This presumption rises from the fact that civil and registered unions can only be solemnised by state registered marriage officers and these are not always available in the remote parts of Zimbabwe where the majority of the population resides. Also judging from the number of legal disputes over property rights, inheritance and estates of deceased persons, it is possible that a great number of married people may not be married under the civil union or may simply not understand their rights under these laws.

Furthermore, according to the Development Centre-s Social Institutions and Gender index, more than 80 percent of Zimbabwe-s rural households are counted among the unregistered customary marriages. It is quite interesting though that the Registrar General-s (RG) office has moved faster to amend its civil marriage procedures than the ministry of Justice and Legal Affairs to harmonising marriage laws. Recently the RG-s office halted civil marriages countrywide to make way for a new system of registering marriages and a marriage certificate with special security features. Many have lauded the move stating that it will protect citizens intending to get married especially to foreign nationals and women who have often fallen prey to con artists.

The new procedure requires those intending to marry to submit their full names and identity particulars plus passport size photographs and thumb finger prints on the day of the wedding. The witnesses to the union also need to give their full names and identification details. In the case of foreign nationals wishing to marry Zimbabweans, they need to produce a police clearance document absolving them of any past criminal activity or conviction in their home country. This will in no doubt compel couples to take time to think about the process and their need for marrying before they say the "I dos", but may not necessarily reduce the number of marriages of convenience and the union of locals to ex-convicts from other countries.

In the last decade an influx of foreigners marrying local women and men for the convenience of gaining citizenship and easy access to local business opportunities has made ordinary citizens and leaders wary of the laxity marriage laws. This has seen many being taken advantage of or even losing their property when their spouses for example choose to move to another country. Zimbabwe-s rigid citizenship laws also have the potential to negatively affect those, especially women, in trans-national unions as battles of who gains custody of the children in cases of divorce or relocation may arise.

The RG-s explanation that police clearance letters will help reduce unions with former criminals, places the need to 'protect- citizens directly above one-s freedom to choose whom they want to marry. While little explanation has been given as to what reprieve ex-convicts have to marry a Zimbabwean, the RG-s office is in a way limiting Zimbabweans- choices on who to settle down with. Locals may not decidedly chose to marry someone who has a criminal record no matter how rehabilitated they maybe because of the fear that he or she may not be allowed to marry them.

Given these new requirements for formalising marriage, some couples may end up choosing to remain unmarried or use the unregistered customary marriage laws which could turn out to be more problematic. Clearly these new changes show just how discriminatory Zimbabwe-s marriage laws are because the civil union has once again been fortified while the registered and unregistered customary unions remain open to abuse. A formalised marriage does not only offer psychological protection, but also the protection of property as one knows that whatever is purchased while they are in that union will be recognised as belonging to both parties. It also helps protect the rights of the surviving spouse in the case of death as it will help settle any estate disputes faster than if people were just living together without officialising the relationship.

Despite the many efforts government is making to ensure protection of people getting married, this protection does not seem to be filtering through to the marriage institution itself as some marriage laws still recognised in the country still men more power than women in a relationship. For example, under the registered customary marriage laws a woman cannot inherit her late husband-s estate ahead of his male kinsmen. This law also allows a man to take more than one wife and considers the man to be legal guardian of the children over his wife. The RG-s office and involved ministries must consider that the extra security features on the marriage certificate will not protect women from the challenges they face once they get into these union because of the skewed and somewhat insensitive laws that still prevail. In this regard, the RG-s office cannot be seen as doing anything else other than practicing double standards when it claims it is protecting people going into marriages.

As a recommendation, the RG-s office may consider ensuring first that benefits from all types of marriages, as long as they are registered with the Government of Zimbabwe, are similar. For instance, for areas that are too far away from magistrates courts or have no marriage officers nearby, certificates of marriage must be obtainable from the nearest government offices to officialise unregistered customary marriages. It is not a secret that in African culture, even those that sign the marriage register and those that hold white weddings first pay some form of dowry. Why then deny those that have paid dowry only, the opportunity to officialise their unions if that, in their culture, is recognition enough of marriage. Does the RG-s office then only view marriage to have taken place if the vows have been made before a judicial officer or a church official registered with government? If so let requirements be made for all people who consider themselves married to sign some form of register and for these registered to be readily available in all government centres.

So far only women have the incentive to have their marriages officialised otherwise men tend to benefit more from the unregistered marriages and this causes a lot of problems for women. This is mostly due to the fact that a man may claim full marriage rights (conjugal and otherwise) from a woman by simply paying dowry to the woman-s family, however the performance of these duties by a woman in an unregistered customary marriage may not be enough for her to claim half the property acquired during the union upon divorce or death of the spouse. To the legal system in Zimbabwe, payment of lobola remains misleading to many women who still lose out even when they know that according to culture their union is valid. The government may incentivise the registration of marriages for men by ensuring that they are for example guaranteed some form of spousal support from the working ex-wife in case of divorce or that they cannot contest the support of an ex-wife and children if the marriage was not registered. As things stand currently, families remain unprotected despite the cosmetic changes currently taking place in the sphere of marriage laws.

According to the Development Centre Social Institutions and Gender index, more than three-quarters of the Zimbabwe-s population; about one in ten women live in polygamous unions. Such marriages are three times more frequent in rural communities than in urban areas, and the incidence is lower among women who have a secondary education. There is therefore a need for the recognition of payment of lobola as formalisation of marriage at a certain level to cater for the huge number of people still using customary guidance for marriage. The rules must be as binding to those that make this commitment before their families as those who make it before a registered marriage officer of the law. This may need certain requirements to be met first for example the legal age for marriage to be 18 for both males and females (currently men can marry at 18 and girls at 16), it could also be a requirement for witnesses to sign a certain agreement to show that the two partners entered the union willingly to deter from early and forced unions. It is hence not enough for government to introduce stringent marriage conditions to laws that have always protected women without first making an effort to improve on the laws that continue to keep women undermined in marriage like the registered and unregistered customary marriages. It is time government acted to harmonise all marriage laws in the country.

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