Malawi lawmakers unanimously voted in favor of a new Marriage, Divorce and Family Relations Bill that still does not recognise same sex marriage as it is clear that marriage is a union between two adults of the opposite gender.
This will disappoint those who would have hoped that there could be a way to legalise same-sex marriages.
“ Marriage is two people of the opposite sex who are in or want to enter into a marriage,” reads the bill
It is expected to soon be signed into law by President Peter Mutharika.
According to the bill, sex is being understood as one’s status at birth.
The new law also indicate that the court will grant an order for divorce or separation if the marriage of a man and a woman has irretrievably broken down because one spouse has been convicted of having sexual intercourse with a person of the same sex.
Homosexuality remains prosecutable offence in Malawi.
Two Malawian men were sentenced to 14 years in prison in 2010 after saying they were getting married.
But rights campaigners argue that the law on marriage not recognising same-sex couples is being homophobic.
Campaigners argue that the bill has used a definition of marriage that is no longer relevant to the current status quo and that in bolstering this heterosexual ideal, the law denies gay couples the chance to express their love via former marriage.
Under Malawian law, sexual intimacy between men is punishable by 14 years in prison; for women, the punishment is five years. But the constitutionality of those laws is currently in question. Human rights activists argue that the laws violate Malawi’s constitutional protections for citizens regardless of their sex, race, tribe or religion.
Opponents of the anti-gay laws include Malawi’s Centre for the Development of People (CEDEP), the Malawi Law Society, the Centre for Human Rights and Rehabilitation (CHRR), the University of Malawi’s Faculty of Law, and the Malawi Network of Religious Leaders living with or affected by HIV.
The new law also stipulated that a marriage will be declared invalid by the court if a spouse was permanently impotent at the time of the marriage.
Court can also nullify the marriage if there has not been marital sex since marriage due to deliberate refusal by one of the spouses.
It also restricts incest.
The court would also dissolve marriage if “tt the time of the marriage one spouse was insane; or had a sexually transmitted infection.”
Marriage would be declared invalid by court if the consent of either spouse was obtained by force, duress, deceit or fraud.
The court can nullify marriage if the woman was pregnant by another person, or the man was responsible for the pregnancy of another person at the time of the marriage.
The law says further that marriage can be nullified in court if a former husband or wife of either party was alive at the time of the marriage, and the marriage still existed.
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.
In 2001, a Special Law Commission was instituted to review laws on marriage and divorce.
It took the commission years to draft the bill, which was later rejected by the cabinet because it also included a prohibition on polygamy.
This time around, Minister of Gender, Children and Social Welfare Patricia Kaliati said, the bill had the support of MPs, especially on setting a new minimum marriage of 18 years, which has remained a contentious issue since a proposal to increase it to 16 was shot down several years ago.
Several MPs said they had supported the bill because of Malawi’s high rate of child marriages.
“Something had to be done to stop this malpractice. That is why I supported the bill,” said MP Lucius Banda who leads United Democratic Front (UDF) in parliament.
The opposition Malawi Congress Party spokesperson Jessie Kabwila said. “Our girls must be in school, not forced into marriage.”
Emma Kaliya, head of the Gender Coordination Network, is delighted that Malawi has now a law “that will support our fight for the girl-child.”Follow and Subscribe Nyasa TV :