GOVERNMENT has with immediate effect revoked Section 40 of the Marriages Bill which granted civil partnerships the same rights as proper marriages.
By Michael Gwarisa and Kudakwashe Pembere
During the post cabinet media briefing, Information minister, Hon Monica Mutsvangwa announced their decision to remove the controversial section following its misinterpretations by the public as it contradicted the country’s religious etiquette.
“Cabinet also sought clarification from the Minister of Justice Legal and Parliamentary affairs on the import of Section 40 of the Marriage Amendment Bill currently before Parliament. Following the explanation by the Minister, Cabinet observed that the concept of a civil union or partnership is already and not consistent with Zimbabwe’s cultural norms as well as its Christian values. Accordingly, cabinet directed that section 40 which bears reference to civil partnerships be removed forthwith from the proposed marriages amendment bill.,” she said.
Explaining the revocation, Justice, Legal and Parliamentary Affairs Acting Minister Subusiso Moyo said they felt it was within the interest of the people that the section be removed.
“This cabinet always reviews legislation and points and aspects which affect the legislation developed before it is passed on to parliament. As you pass on legislation the main component coming in is to make sure it represents the people and the people must be happy with a particular form of legislation which should be enacted. And therefore cabinet realised that the section 40 was being understood, it was being misinterpreted and therefore it was reported that it should be removed particularly on the part of civil partnerships,” he said.
He added that this will not affect customary marriages which are not registered.
Weighing in, Attorney General Advocate Prince Machaya said the section looked into asset distribution not statuses.
“When we prepared that draft bill on civil partnerships, it was solely for the purpose of distribution of the assets of the people involved in that arrangement when they go their separate ways. The partnership relates to property. It does not relate to status like the status of married people. The partnership does not concern itself in the status of the relationship in which they are. It is not recognising a marriage. But it was merely out of recognition of the fairness that was felt that when these people move apart the one who is more economicallyu empowered should not use their economic empowerment to the detriment of the other party,” he said.
Advocate Machaya also said that cohabiting does not guarantee additional rights that a married couple have.
“I indicated earlier that marriage creates a status in a person. When two people meet and get married, their status in law changes. That status comes with certain rights and obligations which the parties in that marriage can enforce against each other and against the world as a whole. Now when two people just move in and live together, the rights they have are the rights they have as individuals.
“The living together does not confer any additional rights upon them. So a person who enters in such an arrangement and is thereafter left by the other party can only enforce the rights they have as individuals because they have not acquired any additional rights by entering into that arrangement,” he said.
He said this leaves the cohabiting couples unprotected by the law.
“So there is nothing that the authorities or the State can do to protect them from what I may term to be deliberateness of their own actions. They are aware of what they are doing. They are aware of how those type of relationships are viewed by society and the law does not recognize them. So people should not cry foul when they say they are not being protected because there are no additional rights for them except the individual rights they always had,” said the Attorney General.
The annulled section or clause 40 provided for relationships which, to make a clear distinction between them and proper marriages, termed “civil partnerships”.
“Civil partnerships are the equivalent of what would be referred to under the general law as “common law marriages”. Civil partnerships are not recognised as marriages as defined under this Bill but for the purpose of realising justice between the parties to the partnership in terms of the Matrimonial Causes Act [Chapter 5:13] upon the dissolution of the relationship. The parties to a civil partnership must be over 18 years of age, not within the prohibited degrees of relationship and, having regard to all the circumstances of the relationship, have lived together as a couple on a genuine domestic basis before their rights and obligations on the dissolution of the relationship can be determined in accordance with the Matrimonial Causes Act.
“Subclause (2) sets out the circumstances that may be taken into account in determining whether or not a civil partnership existed. Under subclause (3), no particular factor in relation to any circumstance may be regarded as necessary in the determination and the court making a determination may attach such weight to any factor as may be appropriate. Under subclause (4), because a civil partnership is not a marriage, it may exist notwithstanding that one or both parties are legally married to someone else or are in another civil partnership,” read the draft Bill.