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Malawi: Parliament Passes Comprehensive Marriage, Divorce and Family Relations Legislation

(Feb. 24, 2015) On February 12, 2015, Malawi’s 193-member unicameral National Assembly passed the Marriage, Divorce and Family Relations Bill, 2015. (Malawi Parliament Overwhelmingly Passes Marriage, Divorce and Family Relations Bill Without Amendment, MALAWI VOICE (Feb. 13, 2015).) The legislation, which is awaiting a presidential signature in order to by formally enacted, consolidates various laws regulating marriage and ancillary matters by repealing and replacing the following statutes:

• Marriage Act (Cap. 25:01);

• African Marriage (Christian Rites) Registration Act (Cap. (25:02);

• Asiatics (Marriage, Divorce and Succession) Act (Cap. 25:03);

• Divorce Act (25:04);

• Married Women (Maintenance) Act (Cap. 25:05); and

• Maintenance Orders (Enforcement) Act (Cap. 26:04). (Marriage, Divorce and Family Relations Bill No. 5 of 2015, § 114, MALAWI GAZETTE SUPPLEMENT (Jan. 30, 2015), MALAWI 24.)

Forms of Marriage and Minimum Requirements

A key provision in the legislation recognizes as valid and of the “same legal status” four different forms of marriage: civil marriage; customary marriage; religious marriage; and marriage by reputation or permanent cohabitation. (Id. § 12.) However, the recognition of marriage by repute is not automatic and requires a court action. (Id. § 13.) Before it can recognize an alleged marriage by repute, a court must consider a number of factors, including the length of the relationship (which must be a minimum of five years), cohabitation, and the existence of children. (Id.)

Another provision sets a universal minimum marriage age at 18 years. (Id. § 14.) As noted in the Memorandum section of the legislation, at present only statutory marriage imposes a minimum marriage age of 18; under customary and religious rites puberty is used as a marker to determine whether a person is ready for marriage. (Id., Memorandum at IV.) As a result, half of all women in Malawi reportedly get married before their 18th birthday. (Malawi: End Widespread Child Marriage, HUMAN RIGHTS WATCH (Mar. 6, 2014).)

However, the minimum age of marriage set under the legislation is not absolute. The legislation states that “[s]ubject to section 22 of the Constitution, two persons of the opposite sex who are both not below the age of eighteen years, and are of sound mind, may enter into marriage with each other.” (Marriage, Divorce and Family Relations Bill, § 14.) Section 22 of the Constitution permits children between the ages of 15 and 18 to contract marriages with the consent of their parents and guardians. (Constitution of the Republic of Malawi (May 16, 1994), § 22, WORLD INTELLECTUAL PROPERTY ORGANIZATION.) Therefore, an absolute ban on marriage of children under the age of 18 would require a constitutional amendment. It appears that this particular provision of the Constitution can only be amended via popular referendum, in which the proposal must receive the majority support of those who participate in the vote. (Id. § 196.)

Polygamy

The legislation does not make any changes regarding polygamy. Polygamy, which is prohibited with regard to statutory marriages under the current Marriage Act, remains so under the new legislation. (Id. § 18.) The only difference is that the new legislation increases the penalty for violation of this ban. Under the existing Marriage Act, bigamy is punishable with five years in prison. (Marriage Act of 1903, § 43, IV LAWS OF MALAWI, Cap. 25:01 (rev. ed., 2010).) Under the new legislation, this act will be punishable, on conviction, by a five-year prison term and a fine of MWK100 thousand (about US$220). (Marriage, Divorce and Family Relations Bill, § 51.) It appears that polygamy will continue to be legal with regard to all the other forms of marriage. (Id., Memorandum at III & IV.)

Rights and Duties in Marriage

The legislation accords equal rights to parties to any form of marriage: “[a] party to a marriage is entitled to equal rights as the other in their right to consortium.” (Id. § 48.) These include the right to “consummation, companionship, care, maintenance and the rights and obligations commensurate with the status of marriage.” (Id. § 2.) In addition, parties to a marriage share a duty to maintain each other and any children of the marriage. (Id. § 50.)

While the legislation requires that monetary contributions of the parties to the marriage be proportional to their income, it states that “non-monetary contributions” must be included in determining the contributions of a spouse. (Id.) These include domestic work and management of the home, child-rearing, and companionship. (Id. § 2.) Significantly, while most provisions of the legislation will take effect as of the date of its enactment and will only apply to marriages contracted afterwards, provisions stipulating the rights and duties of parties to any form of marriage will enjoy retroactive application and bind existing marriages. (Id. § 3.)