One crazy law: Muckraking on Malawi Marriage, Divorce and Family Relations Bill

“Beware of false knowledge; it is more dangerous than ignorance” –George Bernard Shaw

 Let us leave the dreary politics aside this week and discuss some matters of the heart.

You see, folks, the Marriage, Divorce and Family Relations Bill – which has just been assented to by President Peter Mutharika – introduces various new concepts in the law relating to family relationships. Some of them do not make sense at all.

The advocates of the bill – now law courtesy of the President’s magic signature – used the marriage age as a tool to persuade, read force, MPs – to pass it. These people, feminists for that is who they are, also used the same minimum age of marriage as a tool to shame the President into assenting to it.

But has the minimum age of marriage been raised or reduced by this new law?

The new law repeals, amongst others, the Marriage Act of 1902 which on the aspect of the marriage the Registrar of Marriages is prevented from issuing a certificate of marriage until he has been satisfied by an affidavit that each of the parties to the intended marriage (not being a widower or widow) is 21 years old, or that if he or she is under that age, the consent by parents or guardians has been obtained in writing.

The new law states in Section 14 that, “subject to Section 22 of the Constitution, two persons of the opposite sex who are both not below the age of 18, and are of sound mind, may enter into marriage with each other.”

Save for the fact that underage marriages would be declared null and void, there is no further penalty if minors marry contrary to the dictates of the new law.

The Constitution does not put any sanction on underage marriages. What the Constitution does is to demand from the State to actively discourage marriages between persons where either of them is under the age of 15. No doubt the law cannot fight underage marriages. It is acknowledged that laws are there to solve social, political, religious and economic problems. But there are some social issues which the law would be ill-equipped to deal with. Such issues can best be resolved using social means and the age of marriage is just one of them.

The law would only put aspirations on what the minimum age of marriages should be. The measures that the State should put in place include providing the vulnerable members of the community with all the amenities of life including decent education facilities which would keep children in schools.

The new law, in Section 13, introduces 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 new law has 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 new 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 outright funny, if not crazy. For example, Section 92 of the Marriage, Divorce and Family Relations Bill provides for the right of a spouse to apply for permanent maintenance even in divorce. How crazy is that!

It gets funnier when minors make each other pregnant. The new law, in Section 96(2), requires the parents or guardian of the male minor to maintain the pregnancy and to pay for or reimburse the attendance costs of delivery.

Curiously, the new law does not provide for any corresponding responsibility on the parents of the female minor! Is this a case of guilt by association?

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