Malawi’s new marriage law deemed invalid

University of Malawi law experts have noted that the Marriage, Divorce and Family Relations law – which was assented to by President Peter Mutharika after parliament passed the bill is inconsistent with the supreme law of the land, the Constitution and renders invalid the Marriage law which increased the legal age of marriage for girls from 15 to 18.

Legal experts say the parliament rushed in passing the amended bill before changing a constitutional provision that stipulates young people between 15 and 18 may marry upon parental consent.

“If parliament wanted to change the marriage age in the country what they needed to do was to amend section 22 of the Constitution, not just pass a separate legislation then try to change the age by that. As it is, there is a contradiction between marriage age as set in the bill and marriage age as set in the Constitution,” said Mwiza Nkhata,law professor  at Chancellor College of the University of Malawi.

Edge Kanyongolo, who is also Chancellor College Associate Professor of Law, said people can challenge the constitutionality of the Marriage law in court.

“If you read Section 22, the constitution allows persons between 15 and 18 to get married and the section does not expressly prohibit those who are below 15 from entering into marriage. When we have such an apparent inconsistency and a case comes before a court to argue that this act is inconsistent with the Constitution, the court will have no choice but declare the Act invalid,” said Kanyongolo as quoted in the Daily Times on Monday October 26.

He added: “Unless we resolve this matter, at some point we will be faced with the prospects in which people will successfully challenge the constitutionality of the Marriage Act, and this will be a shame. A lot of effort has been put into the enactment of the Act which is well-intentioned. It’s something that we should try to avoid.”

However, Kanyongolo failed to say why people drafted that provision in the Marriage, Divorce and Relations Act when they were aware of Section 22 (7) of the Constitution which reads “For persons between the age of 15 and 18 years, a marriage shall only be entered into with the consent of their parents or guardians.”

Kanyongolo said “in the interest of protecting children,” it is worth to make the effort and call for a referendum and change the Constitution.”

Blantyre Child Justice Magistrate Esmie Tembenu told the paper that she was baffled that the Constitution can allow a child of 15 years of age to get married when an Act of Parliament, the Penal Code, decriminalizes sexual intercourse with a girl below 16 years of age, as defilement.

“What does the Constitution expect a child of 15 years to be doing in marriage? It’s sexual intercourse. Will our law enforcers be able to prosecute that man for defilement when Constitution, which is the supreme law of the land, allows child marriage?” wondered Tembenu in citing the inconsistencies.

Tembenu pointed out: “The marriage provision in the Marriage, Divorce and Relations Act and the Defilement provision in the Criminal law are both inconsistent with the Constitution, which according to Section 5 of the Constitution are invalid in that inconsistency.”

The Marriage law has some interesting aspects which observers say need review such as in Section 13, where it states the concept of “marriage by repute and permanent co-habitation”, a concept which customary law and statutory law did not recognise although the Constitution just mentions it. Persons of the opposite sex who have never undergone any process of celebration of marriage can be said to be married if they live together for a period exceeding five years.

The law also brought changes the manner in which a spouse would acquire interest in a property acquired in the course of the marriage. Under the old law the mere fact of marriage did not entitle a spouse to acquire interest in property acquired by one of the spouses in the course of the marriage relationship. Under the old law, for example, when one spouse does the odd jobs about construction of a house which plainly belongs to the other – the ‘do-it-yourself’ things – he or she does not thereby become entitled to an interest in it. The spouse needed to show direct or indirect contribution towards the acquisition of the house.

The Marriage law does not require showing direct or indirect contribution towards the acquisition of the property. What this means is that any property acquired by any of the spouses becomes, under the new law, joint property. A spouse would not dispose of any of their property whether by sale, will or gift without the consent of their spouses. In effect the new law effectively nullifies the need to make Wills.

Some sections of the new law are controversial like Section 92 which provides for the right of a spouse to apply for permanent maintenance even in divorce.

And when minors make each other pregnant, the Marriage law in Section 96(2) states that it requires the parents or guardian of the male minor to maintain the pregnancy and to pay for or reimburse the attendance costs of delivery but does not provide for any corresponding responsibility on the parents of the female minor.

Earlier this year, some Civil Society Organisations in Malawi in their submission report to the 56th session of the African Commission on Human and Peoples Rights (ACHPR)which was held in Banjul, Gambia called on the Malawi government to address the issue of contradictions between the provision of the Constitution of Malawi and the Marriage, Divorce and Relations ACT.

“The issue of contradictions between the provision of the Constitution of Malawi and this newly assented law on marriage age should be addressed by the state party in order to ensure effective implementation of this new law to that end,” reads the report which submitted by Makhumbo Munthali, CHRR Human Rights and Governance Advocacy Coordinator on behalf of in April this year, Centre for Human Rights and Rehabilitation (CHRR) and Centre for Development of People (Cedep).

The law also only recognises marriages between men and women, disappointing homosexuals who are seeking for “marriage equality.”.

Homosexual acts are illegal in Malawi, where most people hold deeply conservative religious and cultural beliefs.

But homosexual activist argue that marriage equality was not really about laws or the constitution, but were mainly about love, commitment and family.

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