The big interview BY XOLISANI NCUBE
The recently gazetted Marriages Bill has stirred heated debate with churches describing it as a threat to the marriage institution.
Parliamentarians last week blocked Justice minister Ziyambi Ziyambi from introducing the proposed law, saying there was no need to rush it.
The Bill merges the Marriage Act and the Customary Marriages Act. It seeks to end child marriages, among other things.
Ziyambi (ZZ) told our senior reporter Xolisani Ncube in an exclusive interview that critics were misinterpreting certain clauses in the Bill, which he described as progressive. Below are excerpts from the interview.
XN: The gazetting of the Marriages Bill has been met with a lot of debate by ordinary people and parliamentarians. Did you anticipate this reaction?
ZZ: I didn’t anticipate the level of debate, but was satisfied that the Bill managed to generate interest, which is very progressive as Parliament is obligated by the constitution in terms of section 141.
XN: Do you think the Bill has been correctly interpreted by those that have raised concerns around its implications for the marriage institution?
ZZ: I think a lot of misinterpreting has been done, especially with regard to clause 40 that deals with provisions on just distribution of assets in circumstances where a couple had lived together without being married on a domestic basis as husband and wife.
The Bill simply tries to ensure that should a situation arise where one party is married but was living on a domestic basis with someone as husband and wife, purely for the purposes of just distribution of assets, that union would be considered as a civil union for the purposes of applying the provisions of the Matrimonial Causes Act.
All laws that deal with adultery are still in place and it does not in any way legalise multiple partners for those in monogamous marriages.
XN: Churches have come out guns blazing against the Marriages Bill saying it is a threat to the marriage institution and Christian values. What is your reaction to such criticism?
ZZ: Again churches have totally misunderstood the import of the Bill.
Churches are the first ones to admit that we have many couples living as husband and wife without being married and the clause only seeks to deal with their property so that justice is done. The Bill is responding to an already existing problem that our courts have acknowledged.
XN: There is also heated debate around civil partnerships. Please explain the reasoning behind such provisions and your reaction to criticism that it is a threat to the sanctity of the marriage institution?
ZZ: Clause 40: Civil partnerships is a clause specifically to deal with issues of sharing matrimonial property, claiming of maintenance for the spouse and children if any, and determining custody of children.
What has caused the uproar is the fact that it describes a civil partnership in a way that states that for the purposes of the above if a woman and a man both aged over 18 without being legally married have lived together on a genuine domestic basis upon dissolution of their relationship, the law will now consider them married. Only for the purposes I alluded to earlier.
Critics believe this means the law is legalising immorality.
On the contrary, the law simply acknowledges an existing scenario and tries to address it upon dissolution of that union by invoking provisions of Matrimonial Causes Act.
If church leaders and activists manage to ensure that society does not have a man and woman living on a genuine domestic basis without being married, there won’t be need for such legislation.
The law is simply stating that we acknowledge that you are not married, but to ensure fairness and justice for purposes of property distribution, the union will be regarded as a civil partnership.
XN: What is your reaction to concerns that the Marriages Bill undermines monogamous and church marriages?
ZZ: The law does not in any way undermine monogamous marriages. It strives, in line with the dictates of the constitution, to give equal status to all marriages.
XN: Is this a good thing?
ZZ: We need to understand that there is a law called the Matrimonial Causes Act (Chapter 5:13. This law provides for sharing of property between spouses upon dissolution of marriage. However, it does not recognise unregistered customary law unions and civil partnerships as marriages, meaning that women in these unions cannot benefit from this law.
What this means is that if a woman has been married traditionally, lobola paid and traditional ceremonies held, then she goes to live with her husband, without registering the marriage in the marriage register at court, even if they live together as husband and wife for 20 years, in the eyes of the general law they are not married.
Therefore, in terms of the Matrimonial Causes Act, that woman would not benefit any property or claim maintenance at the dissolution of the marriage.
In other words, she would walk away empty-handed, unless she successfully sought relief under unjust enrichment etc, which was very difficult to prove before a court of law.
Now, this new law, we are discussing today was, therefore, drafted with a view to address this anomaly and to do justice between spouses. It addresses the injustices that were presented by the Matrimonial Causes Act. In terms of this newly-proposed law, women can now claim a share of the property and also maintenance even if their marriages were not registered.
XN: What happens if, for example, a husband who legally married his wife to in terms of Chapter 5:11, becomes involved in a civil partnership for a year with another woman outside our marriage?
zz: Clause 40 of the Marriage Bill and the section 7-11 Matrimonial Causes Act will apply.
This means that upon dissolution of the relationship, either party is entitled to the property that they acquired together during the subsistence of the relationship.
Either spouse can also claim maintenance. In making the order, the court will consider the circumstances outlined above.
However, the only property to be distributed is that which they acquired together in their matrimonial home, as “husband and wife”.
They do not go on to touch properties acquired in the other matrimonial home.
XN: Does this mean that even if a person is married in terms of the “Chapter 27” they can now marry as many spouses as they want?
ZZ: The law has not changed in that aspect. The monogamous marriage remains a monogamous marriage, which means one wife, one husband.
No other marriage can be entered into by a person during the subsistence of the monogamous marriage.
If they enter into another marriage while the monogamous marriage subsists, the second marriage will be illegal.
However, where a married party has been involved in a civil partnership (remember we have already defined a civil partnership) the law will turn a blind eye, only for the purposes of property sharing, custody of children, maintenance. Nothing more.
XN: If we now have one Act governing marriages in Zimbabwe, does this mean on can no longer choose the type of marriage they want to enter into? Does it also mean that we no longer need to register marriages?
ZZ: No. You can still choose whether you want a monogamous marriage or a potentially polygamous one.
However, whether you choose the monogamous or potentially polygamous marriage, it must be registered with the marriage officer.
Chiefs now also have the power to act as marriage officers to register the potentially polygamous customary law marriages.
XN: How does the Marriages Bill relate to the constitution?
ZZ: The Marriages Bill gives all marriages an equal status in line with section 56 of the constitution, which guarantees the right of equality and non-discrimination on the basis of marital status.
No type of marriage is superior to the other.
The Marriages Bill in fulfilment of section 80 (3) of the constitution also does away with the cultural practice that asserts that customarily women are not entitled to property ownership.
*All parties now have equal rights and obligations during the subsistence, and at dissolution of the marriage.
*The Marriages Bill is aligned with s81 of the constitution which defines a child as a boy or girl under the age of 18, and prohibits marriage of children.
*The Marriages Bill also prohibits pledging of persons into marriage by ensuring that every person who enters into marriage must have given his or her full consent.