For years, Zomba-based Maureen Goodson believed she was married after a traditional ceremony.
Yet, when her husband divorced her and she sought a share of their matrimonial property, she was met with an unexpected legal shock.
Goodson and her partner Cidrick Chidothi began cohabiting in 2015 and held a traditional wedding ceremony three years later.
However, in 2019, the Third Grade Magistrate’s Court in Machinga ruled that her marriage was illegal because it did not meet certain provisions of the Marriage, Divorce and Family Relations Act (MDFRA), which came into force in 2015.
“I believed I was married all this time. We had our chinkhoswe [traditional wedding ceremony] and a child together.
“To find out it meant nothing legally broke me,” Goodson said during a phone interview last Wednesday, her voice trembling.
The magistrate based the ruling on sections 27, 28, and 29 of the Act, which require a notice of intention to marry to be filed with the registrar, followed by the issuance of a marriage permit.
However, Goodson appealed to the High Court in Zomba, arguing that the magistrate erred in his verdict.
In a ruling delivered on October 4 2024, Judge Zione Ntaba stated that neither the magistrate nor the couple were to blame.
Instead, she pointed to government’s failure to implement the Act by not appointing traditional leaders as registrars as required.
“It is evident the Executive has failed Malawians in implementing the MDFRA, particularly in relation to customary marriages.
“Traditional authorities have not been gazetted or equipped with necessary instruments to enforce the Act,” Ntaba stated.
In civil appeal number 6 of 2020, the judge outlined the consequences of this lapse.
“Failure to adhere to Section 27 means many marriages could be rendered null and void,” she noted.
Section 13 of the MDFRA allows courts to recognise certain unions as marriages by repute if such existed for over five years, the couples cohabitated, had a conjugal relationship and there was financial dependence or interdependence.
However, Ntaba noted that if a customary marriage fails to meet the requirements outlined in Sections 27, 28, and 29 of the Act, it cannot be legitimised on the basis of repute alone.
“This safeguard—to declare these customary marriages that
do not meet the requirements as marriages by repute or permanent cohabitation—is not available,” she said.
She directed the ministries of Justice, Gender, and Local Government, along with Parliament, to ensure that customary marriages celebrated after 2015 and failing to meet the Act’s requirements are legalised within three months.
She also ordered that traditional authorities designated as registrars under Section 4 of the MDFRA should be gazetted and provided with the necessary documentation within a month to implement the law.
The High Court, which recognised Goodson’s marriage, awarded her a house in Zomba, whereas the lower court had only granted her a vehicle.
“I am pleased with the outcome of the appeal. The magistrate’s ruling hurt me, as it left most of our property with my former husband,” she said.
Asked why it has taken nine years to fully operationalise the Act, Ministry of Justice spokesperson Frank Namangale said:
“In this case, our role is to act as solicitors for the Ministry of Gender and the Ministry of Local Government. Therefore, we are limited in our ability to comment on matters pertaining to client/solicitor confidentiality. The two ministries are better positioned to provide updates and comments on this matter.”
However, Parliament’s Legal Affairs Committee vice -chairperson Yusuf Nthenda said it is worrying that the Executive has failed to fully operationalise the law.
“The Executive has not been fair to Malawians. The law was promulgated by the Executive itself. Before asking Parliament to pass the law, they were supposed to be ready to operationalise it.
“We rush to do things when we haven’t properly prepared,” said Nthenda, a lawyer.
