Notes on The 2015 Malawi Marriage, Divorce and Family Relations Bill. Courtesy Habiba Osman and the Bill’s Research and Drafting Team.
1. What is the purpose of the Bill?
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.
2. Provisions Relating to Marriage
2.1 What does the Bill say on the different types of marriage in Malawi?
The following are the types of marriage that are 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.
2.2 How is the Bill clarifying marriages by repute or permanent cohabitation?
The Bill clarifies that this 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.
2.3 What is the Bill changing and not changing in relation to the different forms of marriage that exist in Malawi?
• The Bill continues to recognise the different formalities that are observed when people are entering into customary, religious or civil marriages (i.e. use of ethnic or religious rites for customary and religious marriages).
• However, the Bill is changing:
– The current scenario whereby different forms of marriages carry different sets of rights and obligations. Therefore, regardless of the different formalities of contracting a marriage, the Bill is guaranteeing similar rights and obligations of parties to any marriage;
– In addition, the Bill will ensure that the same law relating to divorce, maintenance and custody of all children will apply to all marriages, which is currently not the case.
2.4 How is the Bill defining the concept of marriage?
• Marriage is two people of the opposite sex who are in or want to enter into a marriage.
• Sex is being understood as one’s status at birth.
2.5 What is the prescribed age of marriage?
• The Bill provides that bearing in mind Section 22 of the Constitution, two people of the opposite sex who are not below the age of 18 years can enter into a marriage.
• Since Section 22 of the Constitution allows children between 15 and 18 years to get married with the consent of their parents or guardians, this suggests that though the proposed age of marriage is now 18, this is not a tight minimum age, since the lower age of marriage with consent under the Constitution still applies.
2.6 What does the Bill say on the topic of polygamy?
The Bill has altered the language that was previously proposed by the Malawi Law Commission (in its report on the review of marriage and divorce laws) banning polygamy in all forms of marriage. Polygamy is being outlawed in civil marriages only as is the case at present.
2.7 What is the Bill recognising as invalid marriages?
A marriage will be declared invalid (nullified) by the court if:
• A spouse was permanently impotent at the time of the marriage;
• There has not been marital sex since marriage due to deliberate refusal by one of the spouses;
• It took place between two people who are prohibited by law to marry because of the nature of the relationship they have either by blood or marriage;
• At the time of the marriage one spouse was insane; or had a sexually transmitted infection;
• The consent of either spouse was obtained by force, duress, deceit or fraud;
• The woman was pregnant by another person, or the man was responsible for the pregnancy of another person at the time of the marriage;
• A former husband or wife of either party was alive at the time of the marriage, and the marriage still existed (note: 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).
2.8 What mechanisms have been put in place to standardise the registration of marriages?
• The Bill is establishing the public office of Registrar of Marriages, who shall be the same person holding the position of Registrar General or acting in his or her behalf.
• It also specifies that District Commissioners, Traditional Authorities who has been given the power to register a marriage, and clerics are designated as “registrars” with authority to perform functions of the Registrar of Marriages. A list of registrars of marriages may be published by the Ministry responsible for Social Welfare.
• With the exception of marriages by repute or permanent cohabitation, the Bill provides that every marriage shall be registered by the Registrar of Marriages.
• The Registrar of Marriages shall ensure that all registrars have Marriage Register Books and Books of Marriage Certificates.
• All registrars shall submit monthly records of their entries in their Marriage Register Books to the Registrar of Marriages.
• All those intending to get married shall be required to give written notice of intention to marry to a registrar in order to obtain a marriage permit as follows:
Customary and religious marriages: The notice will be displayed at the office of the registrar for 21 days. If there are no objections, the registrar will issue the permit requiring the marriage to occur within a certain period before the permit expires.
Civil marriages: Upon declaring before a registrar that the person making the application is single, the written notice shall be fixed outside the registrar’s door or place of worship or work for at least 21 days. Then if there are no impediments, the registrar shall issue a marriage permit requiring the marriage to occur within a certain period before the permit expires.
2.9 What other new provisions should be noted in relation to the celebration of customary of religious marriages?
• All those who have undergone a customary or religious marriage shall be issued by the registrar who will preside over the customary or religious marriage (i.e. TA or cleric) a signed certificate that has the date of the marriage, names of both spouses, and names of at least two witnesses.
• A Traditional Authority shall record details of all customary marriages celebrated in his/her area according to ethnic rites in a Marriage Register Book. So shall a registrar who celebrates a religious marriage;
• A registrar celebrating a customary or religious marriage will administer any oath that may be required by the custom or religion of any of the parties to the marriage.
• All duplicates of marriage certificates shall be sent by any registrar to the Registrar of Marriage for filing.
2.10 What are the uniform rights and obligations that the Bill is creating for all types of marriage?
Regardless of marriage formalities, parties to a marriage have the following rights:
• Equal rights in their right to consortium (what a spouse is entitled to receive from the other, i.e. companionship, care, affection, aid, financial support and sexual relations etc);
• A married woman can choose to use her maiden name, surname of her husband, or both;
• 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;
• Regardless of what any existing law says, a spouse has the right to retain his or her citizenship during the course of a marriage;
• A spouse has the responsibility towards the upbringing, nurturing and maintenance of children of a marriage, whether alone or together with the other spouse;
• During the course of a marriage, both spouses should have mutual custody of their children;
• A spouse has the right to a sexual relationship with the other, except on reasonable grounds such as poor health; if she is recovering after giving birth; if he/she is recovering after surgery; if he/she has reasonable fear that engaging in sexual intercourse is likely to cause physical or psychological harm to either spouse; or if there is need to reasonably respect custom.
2.11 How is the Bill dealing with marital rape?
A husband will commit the offence of rape if he is on separation from her wife and has sexual intercourse with her without her consent.
3. Divorce and Separation
3.1 What does the Bill say on divorce, separation or marriage invalidation?
• A divorce or separation order or an order declaring a marriage to be invalid has to be obtained from a court.
• The court may hear the whole or part of a case behind closed doors.
• The court will grant an order for separation or divorce if it is satisfied that the couple has undergone marriage counselling, and has reached a written agreement (either through a court order or negotiation) relating to issues of maintenance and property.
• The court will declare a marriage to be invalid if any of the grounds outlined under Part 2.7 of this booklet are present.
3.2 What are considered as valid grounds for divorce or separation?
The court will grant an order for divorce or separation if the marriage has irretrievably broken down because one spouse:
• Has committed adultery;
• Has been convicted of rape or having sexual intercourse with an animal or person of the same sex;
• Has deserted/abandoned the other spouse without any reason for one year or over;
• Is guilty of cruelty;
• Is insane and has been getting treatment for not less than 2 years.
3.3 What happens to property upon separation?
• When granting a separation order, the court can make an order for the distribution of all or part of matrimonial property if this is necessary to prevent undue hardship to either spouse.
• Any property that each spouse individually acquires during the time of separation is regarded as exclusive property of that spouse.
• If one spouse dies during the period of separation, his or her property obtained individually shall be distributed as if he or she was not married to the other spouse.
• If the spouses start living together again and if they do not have a clear agreement relating to their property, all property that was acquired by either of them individually during their separation shall continue to be regarded as property exclusively owned by that spouse.
3.4 What happens to property upon divorce?
The court shall equitably divide and re-allocate property during divorce, and the following factors shall be taken into account:
• The income of each spouse;
• The assets of each spouse;
• The financial needs of each spouse;
• The obligations of each spouse;
• The standard of living of the family during the marriage;
• The age and health of each spouse;
• The direct and indirect contributions made by either spouse, including through the performance of domestic duties.
3.5 How is the issue of child custody tackled?
• Where the court is declaring a marriage as invalid or that the parties should be separated or divorced, it has the power to award the custody of any children of the marriage to either spouse.
• The decision on custody shall be based on the interests of a child.
4. Maintenance or Support
4.1 What provisions are introduced in relation to general duties of spouses?
• Both spouses have the duty to maintain each other and any children of the marriage;
• Each spouse is supposed to contribute financially according to his or her income.
4.2 Does non-financial contribution count as maintenance?
The Bill provides that the non-financial contribution of each spouse is to be taken into account when determining the contribution of a spouse to the other spouse or children of the marriage.
4.3 What are the provisions on maintenance during the existence of a marriage?
• If there is neglect by one spouse, the other spouse, a child or a third party (parent, next of kin, close relative or any other person) can apply to court for an order against the other spouse for necessaries of life, including shelter, food, education etc. The amount that the court can award shall be determined by considering factors like:
– The standard of living enjoyed by parties;
– Financial commitments of the party neglecting to provide maintenance;
– Ability of the party accused of neglect to actually provide for the necessaries being sought;
– The income that the spouse who is seeking the maintenance makes in comparison to the spouse that is being accused of neglect.
• A married person can also apply for maintenance if a spouse is:
– Convicted of an offence against her person (note: there is no ‘his’);
– Deserts her or him;
– Is guilty of persistent cruelty to him or her or his or her children;
– Is guilty of wilful neglect to provide reasonable maintenance for him or her or his or her children despite that he or she has a legal obligation to do so;
– Is a habitual drunkard.
4.4 What is the duty of third parties in maintenance issues during the existence of a marriage?
• The Bill imposes on third parties a duty to report where failure to provide maintenance during a marriage causes harm. Thus if one spouse neglects to provide for the needs of the other spouse or children to the extent of negatively affecting the health, safety, security, nutrition and education of those concerned, the parent of a spouse, next of kin, close relative or any other person has a duty to report the abusive spouse to the Minister responsible for Social Welfare.
• The Minister shall have the power to facilitate the separation of the couple, and to make an application for maintenance on behalf of the neglected spouse or children.
4.5 What are the provisions on maintenance of a spouse during separation or divorce?
• A spouse is entitled to maintenance while awaiting a court’s decision in a case relating to divorce, separation, or the invalidation of a marriage. However, the court shall take into account the financial resources of the spouse from whom the maintenance is being claimed, as well as the behaviour of the spouses.
• 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 court can order that the money should be paid either at once, yearly, monthly or weekly so long as the entitled spouse is alive.
• An order for maintenance can be changed or cancelled totally or in part if a court has proof that a person is unable to make the payments that were ordered against him or her.
4.6 What about the maintenance of children during separation or divorce?
• The court shall have regard to the best interest of any children of the marriage, and shall have power to order any maintenance arrangements for the upbringing and welfare of the children in accordance with the Child Care, Protection and Justice Act.
• In making an order to the benefit of a spouse of the marriage, the court shall ensure that such an order should not undermine the maintenance or general welfare of children.
4.7 What considerations have been made for those requiring accommodation upon separation?
Where appropriate, a court that has issued an order of maintenance following its decisions that a couple should go on separation may also make an order:
• That a spouse should not be evicted or excluded from a matrimonial home or any part of it for such a period as the court may specify;
• Prohibiting the spouse against whom the order is made from evicting or excluding the other spouse from the house during that period;
• That alternatively, the spouse against whom the order is made should provide suitable accommodation for the applicant or any child that is entitled to maintenance.
• In making any of the above orders, the court shall consider:
– The financial resources of each spouse;
– The needs of each spouse and any child that is entitled to maintenance;
– The effect that the court’s decision to grant or refuse to grant the order may have on the health, safety and well-being of the spouses or any child;
– The way the spouses behave towards each other;
– The state of the relationship between the spouses;
– The length of time that the two have lived together as husband and wife;
– If there are or have been children who are children of the couple or whom both of them have a shared responsibility;
– The length of time that has elapsed since the couple stopped living together.
4.8 How is the need for maintenance of single pregnant women addressed?
• A man that is responsible for the pregnancy of a single woman shall be responsible for:
– Maintaining the woman during the period of pregnancy;
– Paying for or reimbursing the costs of child delivery.
• If the alleged father is a child, his parents or guardian shall be responsible for the maintenance until such a time that he ceases to be a child or to be dependent on his parents or guardians.
4.9 How can maintenance payments be made?
• Maintenance can be paid in cash or kind based on the direction of the court.
• Maintenance can either be paid in a lump sum (at once), or yearly, monthly or weekly.
• Maintenance can be paid either directly to a spouse, or through any person that the court may approve as a trustee.
4.10 What mechanisms have been put in place to ensure that maintenance is actually paid?
• Where money is payable by an employed person, the court may order that the money should be deducted by an employer from a salary or other employment benefit. The court shall make such a decision taking into account the particular maintenance needs in issue; the chance that the person will default to make payment, location of the parties etc. It is an offence for an employer not to comply, punishable by a fine of K100,000.00.
• If there is evidence that a person is neglecting or refusing to pay maintenance money and any related costs, the court can direct that the money should be recovered by selling goods or property of the defaulting person. Meanwhile, he or she can be detained in custody until the sale takes place, unless he or she satisfies the court otherwise.
5. What offences related to marriage does the Bill create?
• A person who has entered into a civil marriage shall commit an offence of bigamy if he/she gets married to more than one spouse. The punishment is a fine of K100,000 and 5 years imprisonment;
• An unmarried person who knowingly enters into a civil marriage with a person whom he/she knows to be already married commits an offence punishable by a fine of K100,000 and 12 months imprisonment;
• It is an offence punishable by a fine of K100,000 and 12 months imprisonment for a person to make or issue a false declaration, certificate, permit, licence, document or statement by required law for the purpose of a marriage;
• A registrar commits an offence punishable by a fine of K100,000 and 5 years imprisonment if he/she performs a marriage ceremony fully knowing that some legal requirements that would make the marriage void have not been fulfilled;
• It is an offence punishable by a fine of K100,000 and 5 years imprisonment for any person to knowingly and wilfully preside over a marriage ceremony when he/she is not competent to do so under the law;
• Any person who wilfully fails to discharge his or her duty to complete a certificate of a marriage that is presided by him or her and to deliver the certificate to the Registrar of Marriages commits an offence punishable by a fine of K100,000 and 5 years imprisonment;
• A person who pretends to be another person in entering into a marriage or who marries under a false name or description in order to deceive the other ‘spouse’ shall be guilty of an offence punishable by a fine of K100,000 and 5 years imprisonment;
• A person who goes into a marriage ceremony well knowing that the marriage is invalid on any ground, but where the other ‘spouse’ actually thinks that the marriage is valid, commits an offence punishable by a fine of K100,000 and 5 years imprisonment.
6. What offences does the Bill create for other third parties?
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.
7. The Creation of Family Counselling Panels
• The Bill authorises the Minister responsible for Social Welfare to establish Family Counselling Panels, which shall perform the roles of:
– Counselling married couples to prevent or address incidences where neglect to provide support has the potential to negatively affect the health, safety, security, nutrition and education of household members.
– Intervening in cases of neglect or abuse upon receiving information from a concerned spouse or person.
• The fact that a case of neglect and abuse has been referred by a court to a Family Counselling Panel shall not affect any case of maintenance relating to the spouses that is before any court.