STEALTH MATRIMONY AND COLONIAL CONTINUITIES; THE MARRIAGES BILL 2019

The Marriages Bill (the bill) was published in the Government Gazette of 19 July 2019. Some of its provisions are in fulfillment of a Constitutional Court ruling prohibiting child marriages. Other provisions have been more controversial. Section 40 introduces the institution of civil partnerships, arguably a new and radically different form of marriage. This post defines basic terms before discussing the contents of section 40 of the bill.

1.    What is a marriage?

A marriage is a publicly recognized romantic union. It entails exclusive rights to intimacy, fidelity, support and co-habitation. Public recognition sets this union apart from others, making it enforceable against third parties through civil suits. Traditionally, recognition of a marital union was contingent on agreement between the families. Ceremonial rites were held to secure consent of the parties and endorsement of the families.

The advent of colonialism reduced the significance of this custom. It was superseded by European or general law and its preference for formalism and legality. The civil marriage became the highest form of marriage, solemnized in the European institutions of the church and courts of law. African customary marriages were only recognized upon registration. The overwhelming preponderance of marriages remained unregistered and in this way, the majority of black Africans were alienated from the legal protections of marriage.

This hierarchy of marriages was maintained after independence. The aptly named white wedding secured full rights and recognition of marriage, whilst customary law marriages were only recognized upon registration.  Activist judges gradually carved out spaces for recognition of unregistered customary law unions and parliament enacted laws recognizing unregistered customary law unions in the specific areas of guardianship, custody, status and the right of children to succession. In all other respects, the mere act of securing agreement  of families by paying lobola was not recognized as a legal from of marriage.

2.    What does the Marriages Bill say about marriage?

Rather tragically, the Marriages Bill does not achieve equality of marriages or marital status. It further marginalizes African custom and allows for colonial continuities. Only two types of marriage are accorded recognition and equality in the bill. These are the same marriages which were recognized by the colonial regime; the civil marriage and the registered customary marriage. The unregistered customary law union remains excluded. It is only recognized in the limited circumstance of guardianship, access, succession and status of children. Thus, the bill entrenches colonial inequalities and keeps marital protections beyond the reach of millions of Zimbabweans.

3.    What is a civil partnership?

A civil partnership is generally understood as a union which provides marriage rights to groups legally prohibited from getting married. It is a marriage by another name. In the US, UK and South Africa, such partnerships were established to provide same sex couples with the same rights as heterosexual couples. Such unions are based on consent of the parties. Any couple can submit itself to the formal process of registering such a partnership. It is not bestowed by a court of law upon dissolution of such a relationship for instance.  

4.    What is a common law marriage?

These are institutions in which people regard themselves as married though they have not undergone the formalities of marriage. The parties consider themselves married and this is evident from their conduct and verbal representations. This is not recognized as a form of marriage in Zimbabwe. 

5.    What does the Marriages Bill say about civil partnerships?

The Marriages Bill creates a strange new formulation for civil partnerships. It is not modeled for persons excluded from the right to marry. Rather, it selects aspects of civil partnerships and common-law marriages from around the world to bolster the power of the state whilst ignoring the centrality of individual consent. For instance, section 40 of the bill empowers a court to declare the existence of a civil partnership based on conduct of the parties in light of such factors as common residence and duration of the relationship. Yet the bill makes no provision for assessing how the parties regard themselves, thus undercutting individual volition in favour of government over-reach.

Similarly, civil partnerships share the lower status of civil unions globally, but the power to declare the existence of such unions is entirely in the hands of the courts. There is no scope for individuals to enter or register civil partnerships of their own accord. Such partnerships will occur surreptitiously, even inadvertently, and will only be established upon dissolution. This is the definition of a stealth marriage or marriage by ambush. As shall be demonstrated below, this raises fundamental constitutional questions.

If a court finds that a civil partnership was in existence, the Matrimonial Causes Act becomes applicable for division of assets, maintenance (including maintenance of the spouse) and custody of children. In other words, for the purposes of division of assets, maintenance and custody of children, the civil partnership will be considered a marriage. This significantly diminishes the value of marriage since marital benefits accrue to unmarried persons who neither volunteered into such unions nor conducted any marriage rites. Why would people opt for marriage if its protections are made available without the trouble of securing consent of the parties or approval of the families?

6.    Is the civil partnership a type of marriage?

To a degree, the civil partnership is a new type of marriage granted partial recognition by law. As stated earlier, what sets marriage apart is public recognition. The civil partnership will be regarded as a marriage only for purposes of division of assets, maintenance and custody of children. This is similar to the unregistered customary law union which is regarded as a marriage only for purposes of status, guardianship, custody and the rights of children to succession. They will both constitute marriages recognized in limited circumstances.

There are several instances in which the bill reinforces this position:

a)    Clause 40 of the memorandum to the bill distinguishes civil partnerships from proper marriages, thereby implying it is a marriage, but just of an improper nature;

b)    In the same clause, it states that:

Civil partnerships are not recognised as marriages as defined under this bill but for the purpose of realising justice between the parties to the partnership in terms of the Matrimonial Causes Act [Chapter 5:13] upon the dissolution of the relationship.

In other words, it is a marriage for purposes of establishing rights upon dissolution;

c)    Clause 3 of the memorandum states that:

…the minimum age requirement has been extended to unregistered customary law marriages and to civil partnerships. This guards against attempts to side-step the law by avoiding formal marriages and still have children being forced into relationships which are, to all intents and purposes, marriages.

In other words, the unregistered customary law union and the civil partnership will be regarded as informal marriages;

d)    The bill frequently interchanges the word union with marriage in respect of the unregistered customary law union, particularly in clause 3 of the memorandum and section 16 of the bill.

This means there will four types of marriage in Zimbabwe. Two types of marriage will be formal, fully recognized and continue the colonial legacy of registration as a requisite to recognition. The other two will be informal and only recognized in limited circumstances. 

However, this does not render the unregistered customary law union identical to the mooted civil partnership. The unregistered customary law union is contracted with consent of the parties in the presence of family members and is widely respected in both urban and rural communities. The civil partnership is not based on consent of the parties. It is decided in a court of law based on conduct and does not have societal approval. The memorandum to the bill goes as far as to equate the civil partnership to common law marriages. That is egregiously mistaken. The closest institution to a common law marriage in Zimbabwe is the unregistered customary law union. Parties to that union regard themselves as married, represent themselves as such and only lack formal registration. The bill is not concerned with this treasured national institution and instead, focuses on a form of marriage with neither the individual consent nor societal approval in a tragic case of misplaced priorities.

7.    Is the Marriages Bill constitutional?

This bill is unconstitutional in several ways. The marriage rights in sections 78 and 26 (a) of the Constitution are based on individual consent. Matrimonial consequences cannot be foisted without consent of the parties. Yet section 40 of the bill empowers a court to do exactly that. By an order of court, parties who never consented to marriage will be considered married upon dissolution of their partnership. This is contrary to sections 26 and 78 of the Constitution.

The bill also protects the rights of children and spouses upon the dissolution of a civil partnership. On the other hand, Section 26(d) of the Constitution requires the State to provide protections for couples at the dissolution of marriage. There is no constitutional scope for protecting spouses at the dissolution of any relationship that is not legally recognized as a marriage. This leads to either of two consequences: if the civil partnership is not a marriage, then the state has no power to enact section 40 of the bill. If the civil partnership is a marriage, then it falls short of the requirement for consent of the parties guaranteed in sections 26 and 78. Either way, section 40 does not meet the requirements of the Constitution.

Section 78 of the Constitution does not permit same sex marriages. Section 40 of the bill prohibits same sex civil partnerships. The prohibition in the bill is outside the clear text of the Constitution. If civil partnerships are not considered marriages, there cannot be any lawful impediment to persons of the same sex being in such unions. Unlike the global practice in which civil partnerships were a separate but equal first step towards marriage equality, the Zimbabwean version seeks to entrench homophobia. This is patently unconstitutional unless it can be proven that the civil partnership is a marriage for purposes of law, in which case it would be subject to the consent requirements of the Constitution.

8.    Is the State condoning extra-marital affairs?

Yes, to a degree it is. Customary marriages are potentially polygynous (one husband marrying several wives) while civil marriages are monogamous. This is why partners to a monogamous marriage can sue for adultery damages. According to the bill, civil partnerships can exist even where one party is in a monogamous marriage. The reason offered in the memorandum is that a civil partnership is not a marriage, so it can co-exist with a monogamous marriage. The implications of this semantic sleight of hand are truly breathtaking. It means the state contemplates and plans to recognize multiple civil partnerships within monogamous marriages. It is one thing to have the existence of moral and ethical ills, and quite another for the state to recognize and provide legal safeguards for them. Unlike the customary marriage which is potentially polygynous, the bill renders the civil marriage potentially polygamous (having more than one husband or one wife at the same time) and thus open to even more debauchery. Married people can break out of the strictures of marital fidelity whilst the unmarried can tap into the financial security of matrimony. This is probably the only arena in which a version of equality is introduced by the bill, the introduction of polygynous disruption to all recognized forms of marriage in Zimbabwe.

9.    What is the effect on adultery damages?

The Marriages Bill has no effect on the ability of spouses to sue for adultery damages. It does not render civil partnerships valid for purposes of such suits. Further, the High Court recently upheld adultery damages as an important reflection of the societal values attached to marriage in Njodzi vs Matione. This means the bill will allow the state to practice double standards. Adultery damages will be permitted against the same persons who are granted a right to a division of assets upon termination of the adulterous relationship, thereby undermining the marital values of loyalty, integrity and fidelity.

10. Conclusion

Marriage is, by its very nature, exclusionary. Distinctions between married and unmarried persons are not necessarily unfair as stated by the Constitutional Court of South Africa in Volks vs Robinson:

The law may in appropriate circumstances accord benefits to married people which it does not accord to unmarried people… it is not unfair to make a distinction between survivors of a marriage on the one hand, and survivors of a heterosexual cohabitation relationship on the other.

Even though the Marriages Bill claims to establish parity of marriages, it actually entrenches colonial inequalities, perpetuates homophobia and substantially undermines marital values. It seeks to extend marital rights to the unmarried whilst ignoring the vast majority of married people locked out of the legal regime by a colonially constituted hierarchy of marriages. This continued reluctance to give legal recognition to African custom shows the triumph of socially liberal western ideals over African knowledge systems and cultural practices.