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.

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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