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.

Tembenu:any law that is inconsistent with the provisions of the Constitution is of no force or effect.

Tembenu: Any law that is inconsistent with the provisions of the Constitution is of no force or effect

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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marble
Guest

The only MP who pleaded for close scrutiny of the bill was that young mp chaphwantha chairman of legal committee. I know see he had a good point but was booed

Alu School Of Law
Guest

It’s very trouble-free to find out any topic on net as compared to books, as I found this
post at this web site.

Sapitwa
Guest
This is just one of the many contradictions we have but as someone said, the onous remains with the Learned Judge to pass the right judgement. Iam satisfied on the property acquisition that now it gives a full ownership right to both spouses. Women were treated like dogs in the past but now it is just much fair. Iam also satisfied on child maintenance especially where both parents are responsible for maintenance of the child. On the will, the law will not stop me to have one provided it is jointly done with my spouse.What we state in the will… Read more »
Nankununkha sadzimva
Guest

There was a lot of ‘ball watching’ on the part of various stakeholders.

nachisale
Guest

MALIPEYA you are spot on. The Marriage Law is compatible with current and best interests of the girl child – as a woman I would say it caters for the current and best interests of women. UNIMA lawyers and professors are living behind the modern times – in the jungle of naivety.

Malipeya
Guest
THERE IS A CLEAR EVIDENCE THAT LAW PROFESSORS NEED TO REVISIT THEIR CONSTITUTIONAL LEGAL KNOWLEDGE AND THE LEGAL PRINCIPALS OF CHILD PROTECTION. 1. THE LAW PROFESSORS MUST UNDERSTAND THE SPIRIT BEHIND SECTION 22(SUB SECTION) 4 AND 7. WHEN READING MAY BE THEY MUST PUT ON GLASSES AND HAVE A CLEAR MIND TO UNDERSTAND. 2. THEY MUST REMEMBER THAT THE SAME CONSTITUTION PROVIDES UNLIMITED JURISDICTION TO THE HIGH COURT UNDER SECTION 108. THIS IS WHY THE HIGH COURT GRANTED MADONNA THE PERMISSION TO TAKE DAVID WHEN THE MALAWI ADOPTION LAW REQUIRED HER TO STAY IN MALAWI CONTINUOUS FOR 18 MONTHS. THE… Read more »
Zidura Ntengo Undigwere
Guest
Zidura Ntengo Undigwere
Note to Kanyongolo: We do not need a referendum to change the marriage law that was blatantly discriminatory against women; and thwarted education and progress of school aged girls! And we do NOT want to be a nation governed by referendums, many of which would be won based on self enrichment or interest, and very likely won on the basis of which side has the most campaign money. Asa! Sure this is a serious error in that this act is is not consistent with the Constitution. But the responsibility for this fiasco should go to the lawyers in parliament and… Read more »
Mirella K
Guest

‘Analysit’ on point! By the way, would you marry me? Am a charming girl, 17 at Chaminade doing Form 3…Inbox on fb (Mirella K Mapeseka)

The Analyst
Guest

Gladly!

Kamuzu Banda
Guest

does it measn its the whole law or just the piece on marriage age

charles midima
Guest

i concur, any acts of parliament or any law that is incostistent with this constitution shall be invalid to the extent of such inconstistency- section 5 of 1994 constitution of malawi. lets get back to drawing board.

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