Buyer beware: A perspective on the Malawi Marriage Bill of 2015

Within three weeks from last Thursday, when the Marriage, Divorce & Family Relations Bill of 2015 was passed unanimously in Parliament in Lilongwe, the President could assent to it, and it shall thus become the law of the land.

Adolescent girl leaders advocating for the end of child marriage in Malawi. Photograph: GENET Malawi
Adolescent girl leaders advocating for the end of child marriage in Malawi. Photograph: GENET Malawi

First, what is in the bill? I will lift verbatim what has been circulated widely by subject-matter experts, and will follow with my own comments.

Experts say that the proposed law intends to:

  • Ensure that unlike the present situation, Malawi has one law that applies to different types of marriage that exist in the country. Thus the enactment of the Bill will repeal several laws related to marriage, divorce and maintenance that are scattered across several Acts.
  • Make provision for marriage, divorce and family relations between spouses and between unmarried couples.
  • Make provision for the welfare and maintenance of spouses, unmarried couples and their children.

The following are the types of marriage recognised:

  • Civil marriages: Are celebrated by a Registrar of Marriages or other authorised public officer or person.
  • Customary marriages: These follow customary/ethnic rites of one or both of the persons that are getting married.
  • Religious marriages: Are celebrated by a cleric in accordance with recognised rites of a religion, religious body, denomination or sect to which one or both of the persons that are getting married belong.
  • Marriages by repute or permanent cohabitation: Means a couple has not undergone any of the above three processes, but are nevertheless regarded as married as explained in Part2.2.

Marriages validly conducted in another country that is linked to one or both spouses are also recognised in Malawi.

With regard to cohabitation, the Bill clarifies that marriage shall only be recognised under the law if a court establishes:

  • The existence of a relationship not of less than 5 years;
  • The fact of cohabitation (living together);
  • The presence of a sexual relationship;
  • The existence of some level of financial dependence or interdependence and any arrangement for financial support between the parties;
  • The ownership, use and acquisition of property by the couple;
  • The presence of some level of mutual commitment to a shared life between the couple;
  • The fact that together, the couple has, cares for, or supports children;
  • The reputation in the community that the couple is married, and their public display that they have a shared life.

In my view, the rights of cohabitees need to be protected, and the inclusion of this in the bill is a welcome move. In many villages in Malawi, women elope with men, stay together for five or ten years, and are then sent back home empty-handed.

However, I have doubts as to how the court could establish “the presence of some level of mutual commitment to a shared life between the couple,” or “the reputation in the community that the couple is married, and their public display that they have a shared life.” It is also hard to appreciate the rationale for the existence of financial dependence as justification for marriage.

Architects of the law claim that the Bill is guaranteeing similar rights and obligations of parties to any marriage. Yet there are glaring contradictions within the bill itself.  Polygamy, for instance, is being outlawed in civil marriages only.

The very concept of marriage has been defined in a way that contradicts itself. According to the Bill, “Marriage is two people of the opposite sex who are in or want to enter into a marriage.” How can marriage be recognized before it has occurred? How can the intention to enter marriage be marriage itself?

Some aspects of the Bill are indubitably bizarre. A marriage, for example, will be declared null and void by the court if a spouse was permanently impotent at the time of the marriage, or if the former husband or wife of either party was alive at the time of the marriage, and the marriage still existed, although the Bill does not say if this only applies to civil marriages, considering that polygamy has not been outlawed for the other forms of marriage.

Another clause that is noticeable is that upon divorce, a wife can choose to maintain the use of the surname of her husband, unless there is legal proof that she has used the name for an improper or fraudulent motive. Is it necessary to make this a law?

In 1977, Angela Kasner married physics student Ulrich Merkel and took his surname. She is now married to Joachim Sauer, and yet the Merkel name remains.

Tina Turner kept her husband’s name after her divorce from Ike Turner. She is now married to music executive Erwin Bach but remains Tina Turner.

In Germany, there is a law that gives women like President Merkel the right to do so. In the USA, most states allow individuals to change their names with relative ease. Therefore, after divorce or even during marriage, a woman is free to take any name she chooses.

Some women choose to keep their name because they have grown accustomed to it or they do not want to deal with the additional hassle of the paperwork associated with a new name.

So, yes, a law is in order, in my opinion, in this regard. Perhaps what the Bill should add is that the woman should state her intentions to keep her married name as part of the divorce decree.

Also worth noting is a section on marital rape. A husband will commit the offence of rape if he is on separation from his wife and has sexual intercourse with her without her consent. But what about the rape between two spouses who are still legally married?

I know of a woman in Kawale whose husband would come home at 2 a.m. from drinking, pour cold water from the fridge on her, beat her up, and, as she cried, forcibly have sex with her. She later ran away to the United Kingdom, because the law had nothing on marital rape. This Bill has thus left out women in her situation.

And after an order for divorce or separation is granted, the court can order that the spouse who was being sued should give the other spouse a reasonable amount of maintenance money, taking into account the ability of the spouse to pay the money and the income, and behaviour of both spouses. The Bill does not clarify what it means by “behavior of both spouses.”

But what many consider as the most contentious part is the Bill’s attempt to regulate morality. In Malawi, we do not have the Ministry for the Promotion of Virtue and the Prevention of Vice. The following provisions in the bill cannot easily be proved, in my view, and would thus be much ado about nothing:

It is an offence punishable by a fine of K100,000 and imprisonment for 12 months for a person to use his or her influence as a close relation to a spouse to:

  • Cause a breakdown of a marriage relationship between spouses;
  • To prompt any conduct by one or both spouses that can negatively affect their marriage relationship;
  • To cause a spouse to withhold maintenance or support from the other spouse;
  • To influence a marriage relationship to deteriorate or fail.

The Bill attempts to stop philandering, which is good from a moral standpoint, but perhaps not easy to implement in practice. Framers of the law would do well to let the law be the law, rather than to turn it into some ecclesiastical tool for the enforcement of morality.

There are many good things in this Bill. But the public should not just buy it wholesale. It needs to be scrutinized and sanitized to ensure that only the best provisions in it pass into law.

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7 years ago

How dare you would want to buy spare parts of a car from a company who did not manufacture it .You loose time,resources,energy and you will discover that it doesn’t pay to fit spare parts that doesn’t really belong together.if this happens,it is called Modification,meaning this was not meant to fit here but we have forced it and you drive that machine at your own risk.How dare you try to modify marriage which you did not originate?.This thing was originated from God and in the first place he gave instructions to keep it running smoothly.You miss it you are doomed.from… Read more »

Jelbin mk
Jelbin mk
7 years ago

About marital rape the bill is clear it states that it will only be accepted to be rape if one spouse was forced into sex during separation not during normal relationship so I support this piece of legislation because it does not give women the right to deny sex to their husbands without proper reasons as is the case in other countries such as RSA,now I suggest some of you who did not understand this part to go back and re read the bill I know it’s very long but don’t be too lazy when it comes to reading some… Read more »

7 years ago

Who can be a witness to marital rape. Now commercial sex workers will make money from men who will now be denied sex in their family. already we have these town educated women denying sex to their men because they claim they are tired or pursuing studies and can not have sex yet they are busy being fucked elsewhere. Men and women will now stay like brothers for fear of breaking the law on marital rape. Kamba ladies game is yours as you will experience a surge in clients soliciting sex

7 years ago
Reply to  Evidence

You are very right Panopa Ndiye pavutiratu and several men that I have been discussing it with are challenging it that. Women better be carefull with it

7 years ago

So basically they forbid marriage and promoting whoredom (sex outside of marriage). Our woman was created to be a wife and then a mother not a whore. And the truth be told all these young girls are having sex and it is the same politician who forbid marriage soliciting them for sex and making our young girls to be whores. The society become filled with wickedness unwed mothers and deseases. Some of our daughters even start prostituting themselves lost all respect for themselves and life. The truth be told this is a evil scheme by the muzungu to generate money… Read more »

7 years ago

According to the laws of the creator of heaven and earth whose Name is YAH when a woman reach her menstrual cycle she is considered a woman. When he created man in the beginning he say that man was alone so YAH created the woman to be a companion and a helper and for this cause a man must leave his mother and cleave to his wife. And he gave them a command to be fruitful and multiply.

7 years ago

Thats the problem if hvng a faminist(kabwira) in palriament….iyeyo banja linamukanika nde mukufuna atani……

7 years ago

Wat about women which were caught cheating? Do they deserve properties from the husband? I thought they will hv properties from the cheating guy. It will make women to remain faithful to their husband otherwise they are cheating deliberately knowing that they will hv something

7 years ago

the author seems to lack understanding of the bill and wants to mislead pple. read the bill in full you idiot. u mean u cant differentiate rape from mere sexual violence?

Only the Truth
Only the Truth
7 years ago

I have problems with two issues here. One, why is the Bill pinning down the one that is being sued as the one to pay maintenance money to the other in case of divorce? Suppose the court finds that the one who sued is actually at fault? This can easily be abused by opportunistic spouses as it is assuming that the one who takes the matter to court is always innocent, which is not the case in real life. The second one is the last crime, for which one should pay K100,000. It looks as if it was drafted by… Read more »

7 years ago

If what Mr Kenani has stated is in the Act then it’s a confused Act and needs refining before it becomes law otherwise it’s going to create more problems than it’s going to solve

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