Marriages in Zimbabwe are now governed by the Marriages Act [Chapter 5:17] which recently came into operation in September 2022. The Act now consolidates the different types of marriages in Zimbabwe which were governed by separate statutes prior to the promulgation of the new Act. Some of the repealed statutes are the Marriage Act [Chapter 5:11] and the Customary Marriages Act [Chapter 5:07] which separately governed civil marriages and customary law marriages, respectively.
The different types of marriages and/or unions which now exist in Zimbabwe in terms of the newly promulgated Marriages Act [Chapter 5:17] are as follows;
- The civil marriage
- The registered customary law marriage;
- The qualified civil marriage;
- The unregistered customary law union;
- Civil Partnerships.
A civil marriage is defined in section 5 (1) of the Marriages Act as a lawful union of a man and a woman above the age of 18 to the exclusion of others. This type of marriage is strictly monogamous. Once contracted, none of the parties to the marriage are permitted to enter into another marriage with another person.
A registered customary law marriage as provided for in terms of section 5 (2) of the Marriages Act is a lawful union between a man and a woman above the age of 18. This type of marriage, subject to the customary law of the people concerned, is polygamous or potentially polygamous.
A qualified civil marriage as provided for in terms of section 44 (1) of the Marriages Act is a union between a man and a woman above the age of 18 which is not registrable as a civil law marriage or customary law marriage under the Marriages Act but which is registrable in terms of section 44 of the Marriages Act.
From the reading of Section 44(1) of the Marriages Act which governs this type of marriage, it appears that a qualified marriage is meant for persons of the Islamic faith. The relevant section (Section 44 (1) of the Marriages Act) which implies that it is for persons of the Islamic faith reads as follows;
“marriage officer” for the purposes of this section, means a person designated in terms of section 11 for the purpose of designating marriages according to Islamic rites”.
The difference between a qualified civil marriage and a civil marriage is that a qualified marriage is polygamous or potentially polygamous whilst a civil marriage is not. A qualified marriage is also entered into by persons who, to the satisfaction of the marriage officer concerned, would have been members of the Islamic religion for a period of at least 12 months before the solemnisation of the qualified civil marriage.
In addition to the above marriages, there are other unions recognisable at law which give rise to some rights such as those acquired in registered marriages. The first of these unions is an unregistered customary law marriage as provided for in terms of section 17 of the Marriages Act. This type of marriage is defined as a marriage contracted solely according to customary law which is not solemnised or registered in terms of the Marriages Act.
However, in terms of the recently promulgated Marriages Act, parties to an unregistered customary law marriage are now required to register their marriage within three months of the date the union was entered or on such later date as may be prescribed. Parties who were in unregistered customary law marriages prior to the promulgation of the new Marriages Act are similarly also now required to register their marriage with the Registrar of Marriages within 12 months of the promulgation of the Marriages Act. A certificate of marriage is subsequently issued after the unregistered customary law marriage has been registered.
While there is now a requirement to register unregistered customary law marriages in terms of the new Marriages Act, it is imperative to note that there is no sanction for failing to do so. If the union is not registered, it generally remains an invalid marriage and will continue having limited validity in respect of the status, guardianship, custody and the rights of succession of children born of the unregistered customary law marriage – See Section 17(3) of the Marriages Act. An unregistered customary law union is polygamous or potentially polygamous.
The other union which is now recognised in terms of the newly promulgated Marriages Act is a civil partnership. A civil partnership is defined as a union between a man and a woman above 18 years of age who have lived together without being legally married to each other and who are not within the degrees of affinity or consanguinity as provided for in terms of section 7 of the Marriages Act, and who having regard to all the circumstances, have a relationship as a couple living together on a genuine domestic basis. Married people can enter into civil partnerships with other people without it being regarded as bigamy.
In terms of Section 5(5) of the Marriages Act, all registered marriages are equal in Zimbabwe. Parties to registered marriages similarly also have equal rights and obligations upon the dissolution of the marriage- ( section 6 of the Marriages Act and Section 26 of the Constitution of Zimbabwe). Despite the promulgation of the new Marriages Act which sought to address the injustice that arose from the hierarchical system of marriages in Zimbabwe, unregistered customary law marriages (unless if they are subsequently registered in terms of the Marriages Act) continue to rank lower than registered marriages as they are only valid for limited purposes such as custody, guardianship, maintenance and the inheritance rights of minor children and surviving spouses.
Article Compiled by Pretty Murove, An Associate Partner at Scanlen & Holderness. Pretty is a family law attorney contactable on her email address – murovep@scanlen.co.zw.