DRAFT BILL PREPARED BY VERITAS IN 2017 and Amended in 2021
Marriage Laws Amendment Bill, 2021
Marriages in Zimbabwe are governed by two statutes, the Customary Marriages Act [Chapter 5:07] and the Marriage Act [Chapter 5:11]. Both statutes need to be amended in the light of the judgment of the Constitutional Court in the case of Mudzuru & Another v Minister of Justice, Legal and Parliamentary Affairs & Others (CCZ 12/2015), which declared that from the 20th January, 2016, persons under the age of 18 could not lawfully marry, whether under statute or customary law or in terms of any religion.
The Customary Marriages Act, as its name suggests, governs marriages contracted under customary law. All customary marriages must be solemnised (i.e. registered) under the Act in order to be recognised as legally valid marriages, though unsolemnised marriages are deemed to be valid in so far as the rights of children are concerned. The Act is an old one and has not been updated to take account of constitutional and social changes. For example, it does not specify a minimum age at which persons can marry, hence apparently permitting the marriage of girls without any restrictions, so long as they have reached puberty. The Act also requires adult women to obtain the consent of their customary-law guardians before they can marry, even though the Legal Age of Majority Act abolished the “perpetual minority of women” under customary law.
The Marriage Act regulates civil marriages, that is to say marriages contracted under Roman-Dutch law. It, too, needs to be updated to take account of constitutional changes, in particular the need for gender equality and the need to protect children from the abuses of early marriage. It prohibits boys under the age of 18 years from marrying, but allows girls who are over 16 to marry so long as they have the consent of their parents or guardians, and girls as young as 15 to marry with the consent of the Minister of Justice. These ages, incidentally, were fixed at a time when the age of majority was 21 years, not 18 as it is now.
This Bill will amend the Customary Marriages Act and the Marriage Act to achieve the following main objects:
- To prohibit the marriage of minors, i.e. boys and girls under the age of 18.
- To abolish the requirement that adult women must have the consent of their customary-law guardians before they can marry.
- To abolish the requirement that “Africans” who want to marry under the Marriage Act rather than the Customary Marriages Act must get a certificate from a magistrate stating that the bride’s customary-law guardian has consented to the marriage.
In more detail, the individual provisions of the Bill are as follows: