WOMEN lawyers seeking unregistered customary unions to be included in the general provisions of divorce law and subsequent property division want the Constitutional Court to find sections of the Matrimonial Causes Act unconstitutional as they are discriminatory.
The lawyers under the banner of Zimbabwe Women Lawyers Association (ZWLA) are objecting to the limited definition of marriage under Section 2 of the Act, which excludes unregistered customary marriage and increasing common status as couples seek to satisfy both customary and civil law marriages under the existing legal provisions.
The current exclusion of unregistered customary law marriages means that if there is a divorce, the court cannot make use of the provisions of Section 7 of the Matrimonial Causes Act which provides for the factors which the court should take into account when they are dividing the property between the spouses for equitable distribution.
ZWLA last week applied for direct access to the Constitutional Court in terms of the Constitution, after their seemingly endless pleas to have the section in question amended for the definition of marriage to include the unregistered marriage went unheeded.
The majority of nuptials in Zimbabwe are unregistered customary marriages, yet the meaning provided under the section which the women lawyers seek to impugn, has no provision for such marriages.
Under existing law, which a new marriage Bill still before Parliament seeks to rectify, a couple in a registered customary union cannot convert to a civil union, so most couples now decline to register their customary union to leave open the possibility that they can later get married in church or before a magistrate for a registered civil union.
In their application, ZWLA cited the Ministers of Justice, Legal and Parliamentary Affairs and of Women Affairs, Community, Small and Medium Enterprises Development, Zimbabwe Gender Commission, Zimbabwe Human Rights Commission and the National Council of Chiefs in its role as the custodian of traditional and customary laws.
Last week, three judges of the Constitutional Court, Justices Paddington Garwe, Rita Makarau and Anne-Mary Gowora, heard arguments from legal counsel of both parties and reserved judgment. ZWLA lawyer Advocate Choice Damiso instructed by Mrs Dorcas Atukwa submitted that their contention was that the definition of marriage provided for in Section 2 of the Act is unconstitutional for being inconsistent with the provisions of certain sections of the Constitution.
“In particular, the definition of a marriage provided for in Section 2 of the Matrimonial Causes Act is constitutionally invalid because it excludes unregistered customary marriages,” argued Adv Damiso. “To that extent, applicant therefore intends to file an application with the Constitutional Court seeking an order to declare the impugned section constitutionally invalid.”
Adv Damiso said the Marriage Bill is currently before Parliament and there were fears that the President will likely assent to the Bill without the definition in Section 2 of the Matrimonial Causes Act, which governs divorce and its aftermath, being addressed to include unregistered customary law marriages. However, lead judge, Justice Garwe questioned why the women lawyers were rushing to court when the Parliamentary processes were not yet completed and the Bill not passed into law.
The judge expressed the view that the application was not yet ripe for determination since the new Bill was still before Parliament.
But Adv Damiso argued that the application could not be regarded as premature given the long history of advocacy that has been undergone by her clients and other organisations to get the Minister of Justice, Legal and Parliamentary Affairs to introduce the necessary amendments in the definition of the Matrimonial Causes Act.
She brought to the attention of the court observations that have been made by the High Court in numerous cases calling for legislative reform on the marriage laws. The challenge to the provision, said Adv Damiso, was informed by a history of several efforts to include the unregistered customary marriages in the section in question, but to no avail.
Mrs Fortune Chimbaru of the Attorney General’s office acting for Ministers of Justice Legal and Parliamentary Affairs and Women Affairs Community and Small and Medium Enterprises Development conceded that the impugned provision should be amended to include unregistered customary law marriages under the definition of Marriage in the Act.
She, however, argued that ZWLA rushed to court prematurely, as the Bill was not yet passed into law and the women lawyers fears that the President will assent to the Bill in its present form without addressing their concerns were unjustified. It is the positions of ZWLA that that exclusion of such unions in the Matrimonial Causes Act amounts to the discrimination which the women lawyers argue is prohibited under section 56 of the Constitution.