Marriage act [Chapter 5:15]

The marriage Act is published in the Zimbabwe Government Gazette 58

on the 27th of May 2022 is an act that governs the legal framework for
marriages in Zimbabwe. This Act was driven to be made in order to
consolidate, harmonize and modernize marriage laws in line with that
country’s social, international and constitutional obligations. Before the
marriage act was enacted there were two separate marriage laws and
these are the Marriage Act [Chapter 5:11] which regulates civil marriages,
and the Customary Marriages Act [Chapter 5:07] which takes care of
issues under customary law. These laws were not very consistent, they
were and fragmented and they even failed to protect the rights on people
especially those of children and women. These acts, instead of bringing
safety and comfort, caused more harm than good. The new Act (Marriages
Act [Chapter 5:15] ) sought to unify these laws, provide clarity especially
in the legal framework and address emerging marital relationships such as
civil partnerships.
The long title is used to explain its purpose and scope and it outlines its
objectives and these objectives will be explained as they also include
other Acts that have the same provisions.
“To consolidate the laws relating to marriages; to provide for the
recognition and registration of customary law unions; to provide for the
recognition of civil partnerships; to amend the Child Abduction Act
[Chapter 5:05], the Children's Act [Chapter 5:06], the Guardianship of
Minors Act [Chapter 5:08], the Maintenance Act [Chapter 5:09], the
Matrimonial Causes Act [Chapter 5:13], the General Law Amendment Act
[Chapter 8:07], and the Criminal Law (Codification and Reform) Act
[Chapter 9:23]; to repeal the Customary Marriages Act [Chapter 5:07] and
the Marriage Act [Chapter 5:11]; and to provide for matters connected
with or incidental to the foregoing”
As mentioned above, the Marriage Act has multiple objectives such as
recognition and registration of customary law unions. The enactment of
the Act was to mainly provide for the recognition and mandatory
registration of customary law unions. The other previous laws did not
mandate that people had to register their marriages which meant that
most marriages were not registered which led to legal disputes especially
those that led to legal disputes, especially concerning matters of
inheritance, property rights and spousal maintenance. These types of
disputes were very difficult to deal with cause a husband or wife could
claim for inheritance, property or even maintenance but their marriage
would not be registered so that means they will not have any right to
claim anything from their so-called spouse. The Marriage Act [Chapter
5:15] addressed this issue by making registration of customary unions
mandatory, ensuring legal protection for spouses and children in such
marriages.
To add on, another objective of the marriage Act was to consolidate all
laws related to marriage into a single legal framework. The introduction of
this act, as mentioned above that the marriage laws in Zimbabwe were
divided between statutory and customary law, which often created
discrimination, confusion and legal uncertainties. The dual system meant
that customary marriages were often unregistered, leading to difficulties
in proving marriage in legal disputes such as divorce and inheritance.
Repealing the Customary Marriages Act [Chapter 5:07] and the Marriage
Act [Chapter 5:11] , the new Act helped to create one single legal
framework that is comprehensive as well which is applicable to all
marriages, regardless of whether or not they were under the civil or
customary law. This was mainly done in line with Section 56 of the
constitution of Zimbabwe, which guarantees equality before the law and
prohibits unfair discrimination based on marital status or gender
Moreover, the act was also used to help abolish child marriages and bring
Zimbabwe’s laws in line with its constitutional and international
obligations. Section 22 of the old marriages act [Chapter 5:11] allowed
girls as young as 16 years to marry, while boys could only marry at 18
years. This provision was contradicted to what the constitution said in
section 78(1) of the 2013 Constitution, which set 18 years as the
minimum age of marriage. This was not good for the law is supposed to
make it 18 years for both boys and girls. The new Act ends up cancelling
child marriage and aligns with Zimbabwe’s international commitments,
including the United Nations Convention on the Rights of the Child and the
African Charter on the rights and welfare of the child both which
Zimbabwe has ratified.
Furthermore, the act introduced the concept of civil partnerships, which
was not previously recognized under Zimbabwean law. Civil partnerships
are basically relationships similar to unregistered marriages, but the
difference is that couples cohabit for extended periods. Before the Act,
partners in such relationship had no legal rights to property or
maintenance after separation. The inclusion of civil partnership ensures
that partners in long- term relationships have legal protections,
particularly regarding property rights, inheritance and maintenance.
Last but not least, addressing the issue of lobola and marital consent, the
payment of lobola was a key requirement for customary marriages in
Zimbabwe. However, disputes often arose over whether “non- payment or
partial payment of lobola invalidated a marriage “. The new Act makes
sure that lobola is not a legal requirement for a valid customary marriage,
this means that it prevents families from using lobola to block marriages.
Furthermore, the Act emphasizes free and full consent of both spouses in
marriage, in line with Section 78(2) of the constitution, which states that
no one may be forced into a marriage against their will. This protects
women from forced and arranged marriages, which were common under
customary practices.

How the Act was interpreted in Cases

1. Mudzuru & Another v Minister of Justice, Legal and Parliamentary
Affairs & Others (CCZ 12/2015. The applicants mainly challenged
the constitutionality of Section 22(1) of the old marriage Act
[Chapter 5:11] , which allowed girls as young as 16 years to marry,
while boys would marry at 18 years. The applicants, Loveness
Madzuru and Ruvimbo Tsopodzi argued that child marriage violated
Section 78(1) of the 2013 Constitution, which sets 18 years as the
minimum age for marriage.

Court’s Interpretation of the Law: the constitutional court of

Zimbabwe, led by Chief Justice Malaba, held that child marriage was
unconstitutional and that the Marriage Act needed to be changed
and amended to reflect the provisions found in the Constitution. The
court found out that section 22(1) of the Marriage Act [Chapter 5:11]
was inconsistent with section 78 of the Constitution of Zimbabwe
which says “every person who has attained the age of 18 years has
the right to found a family.” The old Marriage Act failed to protect
children from forced and early marriages, violating section 81(1) and
81(2) of the Constitution, which make sure that children’s rights are
followed in the sense of education, healthcare and protection from
harmful cultural practices. The state had a duty under section 81(3)
to ensure that no kid gets to face any harmful cultural practices
such as child marriages.

Results: as a result of this ruling, the new Marriage Act [Chapter

5:15] was enacted which made sure that it prohibits child marriage
by setting 18 years as the minimum age for all marriages which is
section 3 of the Act. It also makes sure that it aligns with
international conventions such as the convention on the Rights of
the Child and the African Charter on the Rights and Welfare of the
Child. It clarifies that no customary or religious practice can override
the legal age requirement for marriage.

Conclusion: The Mudzuru Case played a pivotal role in shaping the

interpretation of the new Marriage Act, ensuring that children’s
rights were followed in Zimbabwe especially in the marriage sector.

2. Chigwada v. Chigwada (2019). This case involved a property

dispute between Mrs Chigwada, the surviving spouse, and the
 property and estate of her late husband. The key issue that was
going on was whether a customary marriage automatically granted
a surviving spouse inheritance rights, especially immovable
property.

Court’s Interpretation of the Marriage Act: the Supreme Court

examined how customary marriages were treated in terms of
property rights, especially the need for marriage registration under
previous marriage laws. The impact of non-registration on
inheritance rights. Whether a surviving spouse in a customary
marriage could claim property rights with a registered marriage.

Results: A customary marriage must be registered for a spouse to

claim property rights under the Marriage Act. Failure to register a
customary marriage could limit a spouse’s inheritance claims.
Customary law principles could still apply in property disputes, but
registration strengthens legal claims.

Marriage Act application: the decision in Chigwada influenced the

new marriage act [Chapter 5:15] by mandating the registration of
customary marriages, ensuring that spouses in such unions enjoy
equal rights in divorce and inheritance matters. It also includes
providing legal certainty for inheritance, property rights, and
spousal protections. Marriage act reinforces the need for legal
documentation in marital relationships to avoid disputes. The case
demonstrates how courts interpret marriage laws to balance
traditional customs with modern legal protections ensuring gender
equality and fairness.

c) Express a view whether the section that led to the interpretation

dispute is well crafted or not.
STRENGTHS
Extensive Provision: The Act is very detailed in specifying the
legal processes for marriage ceremonies, age limitations, and
the responsibilities of marriage officials. This ensures that the
process is evident and transparent for everyone involved.
Protective Provisions:
Its necessity for voluntary agreement guarantees that people cannot
be compelled to marry. Moreover, the age limitations make sure that
minors from exploitation especially in accordance with global human
rights norms. Another act that ensures minors is the guardship of minor’s
act. Conformity with Constitutional Values: The Act reflects the
principles of equality and non-discrimination, fundamental to Zimbabwe's
Constitution.
Interpretative Flexibility: the Act permits courts to interpret its
provisions in alignment with making societal values and norms allowing
adaptability to contemporary issues.
WEAKNESS
Historical Gender Disparities: The original crafting allowed different
minimum marriage ages for boys and girls,
a discrepancy that was addressed only after court involvement. These
differences underscore the necessity for uniform and fair standards from
the very beginning.
Lack of specificity in Modern Issues: The Act does not adequately
address modern concepts such as civil partnerships or the complete
acknowledgment of customary marriages. This absence results in those in
these unions having diminished legal safeguards.
Unclear Definitions of Specific Terms: Phrases such as "free consent"
and "best interests of the child” especially in relation to custody issues
within marriages lack thorough definitions especially to those that may
result in interpretations by the courts