No, ‘small houses’, civil partnerships and unregistered customary unions have not become marriages under new Act
CLAIM: The new marriage act recognises small houses, civil partnerships and unregistered customary unions as marriages
SOURCE: Twitter
VERDICT: False
Background
The Zimbabwe Marriages Act was passed into law on 27 May, 2022 and is set to come into effect at a date to be gazetted. In the last week of August 2022, the issue was again trending on Twitter. It revived the debates and concerns that first surfaced when it was still a bill presented to Parliamentarians.
Apart from social media users bringing their interpretations of the law as seen here and here, legal minds also weighed in to the debate.
Lawyers gave conflicting interpretations as can be seen here and here.
At the heart of the debate are concerns around the ‘sanctity of marriage’; ‘the legalisation of small houses’ and ‘normalisation of adulterous relationships’.
The conclusions being drawn, among many others, that are being tackled by this fact check were that civil partnerships had legalised adultery and made it open season for those who do not believe in marital fidelity; and that unregistered customary unions are now considered marriages at law.
The evidence
The Marriages Act deals with marriage and unregistered customary unions in Sections 5 and 17, respectively.
Section 5(1) states that ‘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’.
Key here is that the law makes it clear that anyone in this type of marriage is not allowed to contract any other marriage during the subsistence of this marriage.
Can this person be involved in a civil partnership? Yes. This shows that a civil partnership under this law is not regarded as a marriage. If it were, the person involved would be guilty of bigamy.
The law in Section 41, clearly states that this partnership is only considered by the law ‘for the purposes of determining the rights and obligations of the parties on dissolution of the relationship’.
To further show that the civil partnership is not a marriage, it falls under Part Vlll dealing with Offences and Miscellaneous Provisions, rather than in Section 5, which deals with marriages.
Section 41 on civil partnerships in 41(6) makes it clear that a person who is in a monogamous marriage is only married to one person and will not be considered as married to their civil partner and will, thus, not be charged with bigamy as a result of this.
It reads, ‘It is here provided that, by virtue of the partners dissolving their civil partnership, neither of them shall be deemed to be guilty of bigamy contrary to section 104 of the Criminal Law Code if either of them is legally married to someone else’.
In deciding whether a couple is in a civil partnership, it will look at various factors spelled out in the Act, and just having spent a night together will not qualify as a civil partnership, contrary to the claim by this tweet here.
Equally, an unregistered customary union, even after the payment of roora, will remain just that – a union. An unregistered customary union is not listed under the marriages in Section 5 but is dealt with separately in Section 17.
The section outlines how this union may be dealt with for it to be considered a marriage and the requirement is that it be registered within a specific time frame. If not done, it will remain as a union except with respect to the status, guardianship, custody and the rights of succession of the children of such marriage at customary law.
Not true – Legal Experts
Legal expert and authority on women rights law, Seppy Ndlovu, says while the new act has indeed brought changes, it has not elevated civil partnerships to marriage nor legalised adultery.
‘According to the new act, a civil partnership is only recognised for the purposes of property sharing. What this means is that when people who had been in this civil partnership want to dissolve it or separate from each other, the law is now assisting them to separate peacefully and share the property that they acquired together. This is a good law because it was put together to assist women. Previously the law was silent and as a result, this was disempowering for women as in most cases when people are a man and woman and stay together and maybe, buy a house or a car, it is put in the man’s name.
‘The challenge that was there with our previous law was that the laws said whoever’s name was on the documents, kept the asset. And in most cases it would be the man and it would be a disadvantage to the woman whose name would not be on the documents. Unfortunately, the courts would not be able to help them share the property because they were not in a marriage.
‘This new act is coming to harmonise and say even if a person was in a civil partnership, when they separate, for the purposes of that separation, we are now treating it as a marriage. However, and this is important, a civil partnership is not a marriage and people need to understand that,’ she said.
And what does this mean for cheating spouses?
‘The challenge here has been that this also drags in along the monogamous marriages that we have, which is the Chapter 5:11 because the law went on to say even a person within a legal monogamous marriage if they are involved in a civil partnership, the law will help them with their civil partner to share whatever they would have acquired with them,’ she said.
Does this mean those who are adulterous get to eat their cake and keep it, too?
No.
‘Adultery laws will still remain like that. This law was put in place to help a certain group of women but unfortunately, it is also going to cause havoc in legal marriages but adultery laws remain. A person having an affair with your spouse, and you are legally married, you are still allowed to approach the courts and seek adultery remedies to that. Adultery laws have not changed and still remain amid all these changes,’ she said.
Weighing in on the unregistered customary unions, she explained, ‘Unregistered customary unions are still not recognised as marriages. They are still unions as in the old act.’
This is the same interpretation made by the Zimbabwe Women Lawyers Association in their public awareness poster that unregistered customary unions are not marriages.
Conclusion
A reading of the Marriages Act and interpretation by legal experts shows that the conclusions drawn by citizens and social media users that ‘small houses are effectively lawful’ and the law ‘recognises an unregistered customary law union as a marriage’: are unfounded and therefore, the claims are rated as false. Civil partnerships, or ‘small houses’ as per the posts, are neither marriages nor legalised as adultery laws are still in place.
Unregistered customary unions are not recognised as marriages, even where the traditional roora has been paid, until one registers them as a registered customary marriage.
