Types of Marriage: The famous “Chapter 37”
Why Chapter 37?
Many people know the civil marriage as Chapter 37. This is because previously, the Act of Parliament that provided for this marriage was titled [Chapter 37]. That title has now changed to the Marriage Act [Chapter 5: 11].
The correct legal term for this marriage is the “Civil” or “Monogamous” marriage. It is called a monogamous marriage because it allows a man to marry only one wife and a woman to marry only one husband. If anyone who is in this marriage tries to marry someone else they commit a crime called bigamy and can be arrested and jailed for up to six (6) months in prison or pay a level 5 fine.
Who can enter into this type of marriage?
Any adult couple (over 18 years), of the opposite sex, who are citizens of Zimbabwe or resident in Zimbabwe and are NOT already married or are already in a registered customary marriage and want to change their type of marriage are allowed to enter into this type of marriage no matter their religious, cultural or traditional beliefs.
The people also have to be of sound mind; consequently, mentally handicapped individuals cannot marry under Zimbabwean law. People who are related within a certain degree of affinity are not allowed to marry each other.
They must do so with full consent. The marriage must not be forced; the couple must not be marrying out of fear or because they have been blackmailed or coerced into entering the marriage.
Who is considered unmarried?
- Any person who has never entered into a “Chapter 37” monogamous marriage and is not already in a registered customary marriage with someone else.
- Any person who is in an unregistered customary law union (has only paid lobola or has had lobola paid for them). This person can either marry the person for whom they paid lobola or who paid lobola for them. They can also choose to marry someone completely new and the law will not forbid them from doing so because the payment of lobola is not considered to be a valid marriage at law except when it comes to sharing the property that the two may have acquired during the union upon separation by dissolving the union or death.
- Any person, who is already in a registered customary marriage, only has one spouse and wishes to marry the same spouse in terms of the Marriage Act. Most women consider this as “upgrading” because where previously their spouse could potentially legally marry other wives, when they “upgrade” they are forbidden at law from doing so. A man who already has two or more wives cannot legally upgrade any one of them. If he wishes to do so, he has to divorce all the others first before he can marry the one he wishes to “upgrade.”
- Any person who was once in a registered customary marriage or a “Chapter 37”marriage but has since divorced legally or become widowed. Please take note that separation is not divorce. If the marriage is still registered and has not been cancelled in the Register, an individual will not be allowed to marry. If they attempt to do so they will be charged for committing bigamy and face a maximum jail sentence of six (6) months or pay a level 5 fine.
Is payment of lobola required?
No. Lobola is not a requirement at law for a couple that wants to enter into this type of marriage to be able to marry. Most black Zimbabweans, however, observe the cultural practice of paying lobola before they enter into this type of marriage, to fulfil the cultural expectation of doing so and to get the full blessings of their parents. We must make it clear that getting married without paying lobola still results in a valid legal marriage. In fact, two adults who want to get married can go ahead and do so without the permission of the parents, especially in cases where they do not have money to pay lobola or the parents disapprove of their choice of a husband or wife.
How does one enter into this type of marriage?
To get into this type of marriage you need to apply for a marriage license first. This can be done by going to the Magistrates Court nearest to you and asking to make this application. This application will be used to search the database and make sure that you are not marrying for the second time.
Before you marry, your intention to marry must be announced at least 3 times. These are what we call marriage banns. So when you hear the pastor announcing the marriage in church, it is not for his pleasure but he is required to do so by the law.
Marriage banns need to be published. If the couple intend to marry in church the banns are publicly announced by the pastor or priest, as the case may be, and those who will be married by a Magistrate at the Court will have to publish the banns through the Magistrate.
Where and when can this marriage be conducted?
This marriage can be conducted at any time of the day. Evening weddings have become very common in Zimbabwe. The marriage can also be carried out at any church, or any other building used for religious service or in a public space like a park, garden or a private house or any other place where the marriage officer is comfortable carrying out the ceremony e.g. houseboat, mountain top.
Who should be there?
Both people getting married should be physically present. A person cannot enter into this marriage in their absence and ask someone else to stand in for them. This kind of arrangement, known legally as marriage by proxy is strictly not allowed.
Two witnesses, who are both adults (over 18 years), should also be at the ceremony and will be required to sign the marriage register to certify that the two have gotten married.
Who is permitted at law to officially handle the ceremony?
A designated magistrate or another marriage officer (pastor, priest, any other person with the legal powers to do so) will lead the marriage process on the day of the marriage. Simply because someone is a magistrate or a pastor or a priest does not give them the power to conduct a valid and legal marriage ceremony. Those powers must be designated to them legally and they must follow all the legally required procedures to ensure that no laws are being broken by marrying the two individuals being married.
The case of State vs Chimanga
In 2006, a Regional Magistrate at Kadoma Magistrates Court was arrested, for engaging in marriage scams. It was alleged that he extorted a couple based in the UK of money in order to give them a marriage certificate without following the set procedures.
When does this marriage come into being?
This question has never really been examined in our laws. It is therefore not clear whether the marriage begins when the parties have said their vows and the marriage officer has not yet pronounced them man and wife or after the declaration by the marriage officer.
In the Australian case of QUICK vs QUICK, the husband began putting the ring on the wife’s finger, and the woman flung it away and said to the man I WILL NOT MARRY YOU and ran off. The officer had not pronounced them man and wife but they had both said I WILL to the question if they would take each other as husband and wife. The Court that heard the case said that the two were married since under common law all that is required is mutual acceptance before a marriage officer that they would take each other as husband and wife. The court also said that the marriage tie is created when the woman takes the man as her lawfully wedded husband and the man takes the woman as his lawfully wedded wife. The declaration by the marriage officer merely confirms the state of affairs.
How binding is this marriage?
When two people enter into this marriage, they agree to take each other as husband and wife to the exclusion of all others until death or divorce or some order of a competent court separates them. The marriage creates a binding legal relationship which no ordinary person can break.
This marriage cannot be “down-graded, ” in other words a man who is already in this type of marriage cannot try and change it to an unregistered customary law union to allow him to marry other wives. The only option he has if he wishes to marry someone else is to divorce his wife.
The marriage certificate
After a marriage ceremony, the newlyweds will be given one (1) copy of their marriage certificate. It is wise to make copies of this certificate and keep them in safe places for the future. This certificate will become very important for many reasons including
- deriving spousal benefits from each other’s places of work during the marriage and after death;
- resolution of conflict in case of divorce;
- suing for adultery damages in case of infidelity by one spouse; and
- inheritance in the event of death (including pensions, debts owed to the other partner).
People usually think a “Chapter 37” marriage is about getting maximum benefits when they divorce or when a partner dies. However, this certificate also comes with great responsibility; spouses inherit both the benefits and liabilities of their partners. So, if your spouse owed a bank 100 million at his/her death, that debt becomes yours upon his/her passing.