MLS for Marriage Bill, activist against
The Malawi Law Society (MLS) has defended the Marriage, Divorce and Family Relations Bill, saying the legislation is about much more than property sharing and maintenance issues.
MLS’s comments follow the heated debate after its enactment by Parliament.
In a questionnaire response last week, MLS secretary Felisah Kilembe said the law addresses various aspects from celebration of marriage, judicial separation to its dissolution; hence, there is nothing new.
Said Kilembe: “Even if this bill did not exist, the courts would still have to deal with issues of maintenance and property sharing.
“It is much more beneficial for citizens to know the consequences of getting married, cohabiting, impregnating someone, dissolving a marriage, among other issues than to be surprised when a court rules in a certain way.”
MLS argues the new law is simply restating the law as it currently stands.
On the annulment of marriage as prescribed by the law due to one partner being permanently impotent at the time of marriage, Kilembe dismisses fears that the law is discriminatory.
Said Kilembe: “For example, on the issue of [sexually transmitted infections] STIs, [or impotency] the marriage will only be annulled if the petitioner was not aware that the respondent had the STI or was permanently impotent at the time of marriage and the proceedings must be brought up within one year of marriage.
“This in a way protects innocent parties from unscrupulous people who may enter into marriage without declaring their health status to the detriment of the other party.
“At the same time, it protects the rights of those with STIs because the courts will not entertain any annulment of marriage on this ground if the petitioner was aware of the facts and also if the proceedings are not brought within one year of the marriage [as stipulated in the law].”
She said the bill does not say that each couple that has been together for five years will be declared married by repute or cohabitation, explaining that there are several factors that will be considered by the court.
She said: “The rationale behind marriage by repute or by cohabitating is to protect vulnerable parties who may have lived in a marriage like relationship only to find that they may not have any rights at all when it comes to issues like inheritance.
“This type of marriage has always been recognised in Malawi because it is there in the Constitution. The only difference now is that while in the past it was left at the discretion of the court to decide if a marriage by repute or cohabitation existed, the new bill sets out the parameters within which a court will find the existence of such a marriage.”
She said every party that conducts their relationship or courtship in a way as provided under the new bill risks being found to have been married by repute or cohabitation.
She, however, said there is still need to relook into other areas before it is finally assented to.
But a human rights activist, Gift Trapence of the Centre for Development of People, said the bill has all good intentions only that it has been spoiled by some discriminatory aspects such as impotency and STIs as grounds for marriage dissolution; hence, needs to be rectified before te President assents to it.
The new bill, in Section 77 (1), states that the grounds for nullification of a marriage may be “that the respondent [the one sued] was permanently impotent at the time of marriage” or “that the respondent was at the time of the marriage suffering from a sexually transmitted infection”.
