Revisiting of the marriage act vital in addressing inheritance

Marriage is an intensely personal matter, but the concept exists in all cultures and across all religions, although there can be argument over just how many wives a man may marry or how many husbands a women can have. The problem for a government is deciding which marriages to recognise and figuring out a method of recognition.

In Zimbabwe, in pre-colonial times there were a multiplicity of cultural norms, but most communities demanded that the families of the man and the woman had to agree that they could get married and, when a number of steps, which almost always included payment of lobola, had been completed, the two families and then the community agreed the couple were married. Polygamy was allowed.

The advent of colonial rule and the near simultaneous major upgrade in missionary activity added two more sets of marriage laws.

The missionaries introduced the concept of a Christian marriage, which in essence involves just the couple declaring their intent before two witnesses and an officer of the church, who also records the marriage for the church. Family and community recognition are not required, under church laws, and a Christian marriage is monogamous and for life.

The new political order introduced a third way of getting married, a civil marriage, which was similar to the Christian marriage in the fact that it involved just the couple declaring their intent before two witnesses and, in this case, a representative of the State. It was also monogamous.

The arrival of immigrants of the Jewish, Muslim and Hindu faiths introduced more ways of becoming married. It was quite possible, in the mix-up, to be married in the eyes of only a religious organisation, or only a community, or just the State.

Some thought went into sorting out the resultant mess. The State itself decided to recognise just two types of marriage: a customary marriage that it was told had happened and its own civil marriage. At the same time it was more than ready to swear in selected members of religious communities as unpaid State marriage officers, so that any religious ceremony of marriage that conformed to the rules for a State civil marriage would also be recognised as a civil marriage.

The system worked for many decades, although it did not fit most couple's lives. Many Zimbabwean Christian couples would still go through a customary marriage, to ensure their marriage was recognised by their families and communities, to have this marriage registered with the State as a customary marriage, so the Government agreed they were married, and then to go through the quite separate Church wedding, which in that case was not recognised by the State since no marriage could be registered under different State laws. Over time, and especially over the last 40 years, a new trend emerged and is now dominant. A couple marry under customary law, again to ensure family and community recognition, but do not register this marriage with the State.

They then marry in a church marriage recognised as a civil marriage, or just in a civil marriage. Hardly anyone now registers a customary marriage with the State.

This works for many couples, but for a sizeable minority there are serious problems. First, there is often a long delay between the customary marriage and the ceremony that is recognised as a civil marriage.

The second is that some men having gone through a church-civil or pure civil ceremony with one woman later go through a customary union with a second woman, which the State refuses to recognise since there is an existing civil marriage.

In both these cases it is easy for a wife and her children to be disinherited on the death of a husband. The State affords far more protection to surviving spouses and children of a recognised registered marriage than it does to mere dependents.

The very different inheritance laws arising from customary and common law have both been substantially modified and harmonised since independence to ensure surviving spouses and dependent children cannot be disinherited or left homeless.

The Zimbabwe Women Lawyers Association, whose members have done a great deal to help "unregistered wives", now wants some system whereby all marriages can be recognised, at least for inheritance purposes, by the State. The Government thinks that is a good idea and will soon hire a consultant.

Our plethora of marriage laws cannot be harmonised; there are too many differences. But we think serious consideration can be given to two amendments to the Customary Marriages Act.

One would allow a couple whose union was already registered under that Act to register the same union later as a civil union, so long as they could still fulfil the requirements of that law; this is not unreasonable since many countries already refuse to recognise a church marriage and so French couples, for example, have to marry twice, once in church and then before a civil marriage officer.

The second amendment would be to make it easier for someone married under customary law to register that union, if necessary without the consent of the other partner although that unwilling partner would still be allowed to object if they believed no marriage had taken place.

There would still be complications with a customary union following a civil union, but some sort of system of at least partial registration, perhaps the wife was recognised as married but not the husband, would allow the Government or courts to step in to enforce inheritance rights.