Development

Varying opinions on Marriage Bill

A week ago Nation on Sunday carried a random survey in Blantyre City to gauge Malawian’s perceptions of the Marriage, Divorce and Family Relations Bill.

Of the 32 respondents (17 male and 15 female), 27 (14 females and 13 men), said they had read about the bill and were able to point out its strengths and weaknesses.

Does the new marriage law favors women more men?
Does the new marriage law favors women more men?

While most females were happy that the bill gives them powers to decide what to do in their relations, most men faulted the bill, arguing it is a fighting tool for women against them.

The views from the survey were also common in discussions on social media.

In a presentation to the Legal Affairs Committee of Parliament titled The Marriage, Divorce and Family Relations Bill: The Aftermath, Khumbo Soko, of Soko and Co., argues that, among others, the Law Commission, in developing the law was guided by the principles of non-discrimination and affirmative action.

“It is evident, however, that this was only from the perspective of gender and that these values were not embraced in their broader and liberal sense,” he said.

Soko noted that the application of these principles in this narrow fashion affected the manner in which the Law Commission approached and consequently delivered on its mandate.

But despite that, Soko noted the bill is ‘generally a step in the right direction’.

He notes that in addressing inequalities and discriminatory treatment in the law as regards issues such as rights and obligations in marriage, its provisions on right to consortium and duty to maintain family are progressive.

He adds that the law’s stand on marriageable age, which is now 18, is a welcome move towards resolving the confused state of our law on majority age.

Soko also welcomes the granting of legal status to religious marriages, considering the number of people who marry that way.

On simplification of the process of matrimonial disputes, Soko hails the provision on one ground for divorce and the granting of jurisdiction to subordinate courts to handle matrimonial disputes.

“The law,” he says; “is generally against patriarchy and affirms the rights of women not to be discriminated against on the basis of their gender.”

He underlines that the guidelines on what constitutes a marriage by repute and permanent cohabitation will be extremely helpful.

On the other hand, renowned private practice lawyer Ralph Kasambara has likened the new law to “repairing a car with the engine running”.

Kasambara, who twice served as attorney general, says the new law only applies to marriages celebrated on or after date of commencement of the Act.

“We are yet to know that date assuming the President consents to the bill, the only exception relates to married persons obligations of consortium and supporting each other. I think this was a mistake.

“Surely the new divorce law provisions should apply to old marriages. Otherwise, if the Divorce Act is repealed, how else will people be divorcing?” he asks.

He also notes that the new law is timid in so far as lesbian, gay, bisexual and transgender (LGBT) issues are concerned, observing that such partnerships may have to be addressed in another law.

“Marriage takes the definition at customary law, of persons of opposite sex and sex being determined at birth,” Kasambara says.

Besides, the lawyer also notes that the new law brings about an unnecessary definition or understanding of marriage by repute and cohabitation.

“For instance, it limits to cohabitation of not less than five years. I can easily see courts reading the “and” as being disjunctive and not conjunctive so that cohabitation of five years is just one of the factors the courts will look in determining whether there is marriage by repute or cohabitation,” he says.

On marital rape, Kasambara argues that a man commits rape with his wife if he has sex with her without her consent. However, he wonders whether the new law means a man can lawfully rape his wife during marriage or in the absence of judicial separation?

“I would have thought common law status of absence of consent was one that was progressive. Let us see how the courts will deal with this section,” he says.

The lawyer further feels the new law makes divorce expensive and complex, saying under the current status, customary divorce by consent is possible; this new law does not condone collusion by parties—which, he says, ‘is a retrogressive step’.

Kasambara also fears that requiring celebration of customary marriages filing notices is a retrogressive step as it brings about unnecessary expenses to rural people. In fact, he argues that the provision might be a fertile ground for corruption by traditional leaders.

Though Soko calls the new marriage law a step in the right direction, he argues that in some respects, it is also a lost opportunity to push against walls of discrimination.

“The explanation for this is invariably the narrow manner in which the Law Commission applied its guiding principles of non-discrimination and affirmative action in developing a law of general application,” he said.

He adds that the new law also raises the challenge of administration and enforcement costs—the danger of a legal ‘white elephant’.

Soko sees the need for some serious thought on the possibility that some citizens may fall through the law’s ‘cracks’ as a result of the gulf between the idealism of the black letter law and the reality on the ground.

 

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