MARRIAGES BILL, 2019


First Published: May 29, 2019 Caption:Marriages Bill Preview

THE MARRIAGES BILL , 2017

The Marriages Bill, 2017 (hereinafter called “The Bill” seeks to achieve the following

  1. To repeal and replace the Customary Marriages Act [Chapter 5:07] and the Marriage Act [Chapter 5:11]
  2.  To consolidate the laws relating to marriage.
  3. To have one Act of Parliament which governs Marriages. Currently there are two Acts of Parliament which govern marriages, namely the Customary Marriage Act [Chapter 5:07] and the Marriage Act [Chapter 5:11]
  4. To provide for the recognition and registration of customary law unions.
  5. To provide for the recognition of civil partnerships.
  6. To align our marriage laws with the constitution.
  7. To bring about the equality of all marriages.

KEY PROVISIONS OF THE BILL

The following are some of the key provisions of the Bill

  1. Section 2 defines a Child as a person under the age of eighteen years.
  2. The aforesaid section also defines “marriage” as meaning a marriage solemnized, registered or recognized as such in terms of this Act, being a union between persons of the opposite sex.
  3. Section 3 outlaws child marriages. It provides that, “No person under the age of eighteen years may contract a marriage or enter into an unregistered customary law marriage or a civil partnership”
  4. In terms of section 4 of the Bill, each party to the marriage must give his or her free and full consent to the marriage. In other words, consent to marriage will no longer be given by legal guardians but by the parties to the marriage themselves.
  5. Section 6 provides that parties to any marriage have equal rights and obligations during the subsistence, and at the dissolution of the marriage.
  6. In terms of section 9, every chief shall by virtue of their office and so long as they hold such office, be a marriage Officer in customary law marriages for the district in which they hold office.
  7. Section 15 provides for the solemnization of every marriage contracted according to customary law.
  8. In terms of section 16, a marriage contracted solely according to customary law and not solemnized in terms of this Act must be registered by the parties to such marriage within three months of the date the union was entered into.
  9. Section 40 recognizes and legitimizes civil partnerships. A civil partnership is defined as a relationship between a man and a woman who:
    • (a) Are both over the age of eighteen years
    • (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 seven, and
    • (d) Having regard to all the circumstances of their relationship have a relationship as a couple living together on a genuine domestic basis.
  10. The aforesaid section further provides that on the dissolution of the relationship, sections 7 to 11 of the Matrimonial Causes Act [Chapter 5:13] shall apply. The said sections provide for the division and dissolution of assets as well as maintenance claims.
  11. Section 40(5) provides that a civil partnership exists notwithstanding that one or both of the persons are legally married to someone else or are in another civil partnership marriage.

ANALYSIS OF THE BILL

  1. The Bill outlaws same-sex marriages by defining marriage as meaning a marriage solemnized, registered or recognized as such in terms of this Act, being a union between persons of the opposite sex.
  2. The consolidation of our marriage laws into one Act of Parliament makes it easy for people to find, read and understand our marriage laws.
  3. By defining a child as a person under the age of eighteen years and providing that no person under the age of eighteen years may contract a marriage or enter into an unregistered customary law marriage or civil partnership, the Bill outlaws child marriages.
  4. Each party to the marriage is in terms of section 4 required to give their free and full consent to the marriage.
  5. Section 5 (5) provides that all marriages are equal. What does this mean? Whilst marriages may be equal to the extent to which they will be governed by one Act of Parliament vis-à-vis the division and distribution of the parties assets upon divorce, can the civil marriage, the customary law marriage, and the unregistered customary law union be equal? A civil marriage is solemnized by a magistrate or a minister of religion whilst a customary law marriage is solemnized by a magistrate or a chief. Where is the equality in this? A woman in a monogamous marriage can sue her husband’s mistress for adultery damages yet a woman in a customary law marriage cannot do the same. Where is the equality in this? In a monogamous marriage, in the event that one dies intestate (ie without a Will), the surviving spouse is entitled to inherit the house or other domestic premises which the spouse or the surviving spouse lived in immediately before the deceased’s death. This is in terms of section 3A of the Deceased Estate Succession Act [ Chapter 6:02] whereas in a customary law marriage in the event that one dies intestate ie without a Will, the surviving spouse is entitled to inherit the house in which the surviving spouse lived at the time of the deceased’s death. This is in terms of section 68(2) (C) of the Administration of Estates Act [Chapter 6:01]. Again where is the equality in this?
  6. Section 9 provides that every chief shall, by virtue of their office and so long as they hold such office, be a marriage officer in customary law marriages for the district in which they hold office. This section should be compared and contrasted with section 10 of the Bill which provides for the designation of Ministers of religion and other persons as marriage officers. There is a clear distinction between how chiefs and how ministers of religion become marriage officers. A chief becomes a marriage officer in customary law marriages by virtue of their office. A religious minister, on the other hand, is not a marriage officer by virtue of their office. For a religious minister to become a marriage officer they should meet the requirements set out in section 10 of the Bill as read with section 3 of the Marriage Regulations, S1 866/1979. The requirements are that:
    • 6.1  The authority governing the minister of religion’s denomination should request the Minister of Justice, Legal and Parliamentary  Affairs to designate the minister of religion as a marriage officer.
    • 6.2  The minister of religion should have adequate knowledge of the English Language
    • 6.3  The minister of religion should have an understanding of the provisions of the Act and the religious.
    • 6.4  The minister of religion should pass an oral or written examination or both.
  7. The requirements set out above do not apply to chiefs. They only apply to ministers of religion.
  8. Section 13 provides that the minister may on the ground of misconduct or for any other good cause, revoke in writing the designation of any person as a marriage officer. It is worth noting that whilst a religious minister’s designation as a marriage officer can be revoked, a chief’s designation as a marriage officer cannot be revoked.
  9. Section 16 provides that a marriage contracted solely according to customary law and not solemnized in terms of this Act must be registered by the parties to such marriage within union was entered into or such later date as may be prescribed.
  10. Section 40 provides for the recognition and legitimization of civil partnerships. A civil partnership is defined as a relationship between a man and a woman who :
    • (a) Are both 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 seven, and
    • (d) Having regard to all the circumstances of their relationship, have a relationship as a couple living together on a   genuine domestic basis.
    • 10.1 Section 40 (5) provides that a civil partnership exists notwithstanding that one or both of the persons are legally married to someone else or are in another civil partnership marriage.
    • 10.2 Upon the dissolution of the civil partnership the rights and obligations of the parties are determined in terms of section 7 to 11 of the Matrimonial Causes Act [Chapter 5:13].
    • 10.3 Section 40 effectively legitimizes “small houses”.
    • 10.4 Apart from legitimizing “small houses” section 40 accords “small houses” legal protection.
    • 10.5 The same section also condones adultery by promoting legally married persons to enter into civil partnership.
    • 10.6 Cohabitation is regarded as morally wrong. By legitimizing it, the section seeks to make legal that which is morally wrong.
    • 10.7 Cohabitation is considered ungodly. Bearing in mind that the preamble of our constitution states that as a nation we acknowledge the supremacy of the Almighty God, section 40 seeks to legalize that which is ungodly.10.8 Section 40 does not recognize the sanctity of marriage.
    • 10.9 If the law permits a legally married person to enter into a civil partnership then there will be no legal basis for adultery damages claims.
    • 10.10 Section 40 does violence to both our moral values and our Christian values.
    • 10.11 The aforesaid section promotes multiple partnerships.
    • 10.12 By permitting a civil partner to claim maintenance and or property from a legally married person with whom they will be in a civil partnership, the aforesaid section introduces insecurity in marriages.

 

dk photo INTERNATIONAL ARBITRATION 

DAVISON KANOKANGA   BL, LLB, MCI Arb, FA Arb

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