Definition of terms
Void Civil Marriage– A void civil marriage is a civil marriage which has simply never come into existence. The position is exactly as it would have been had the “marriage” never been concluded
Voidable Civil Marriage– A voidable marriage is a marriage in which grounds are present, either before or at the time of the wedding, on the basis of which the court can be requested to set the marriage aside.
INTRODUCTION
The Constitution of Zimbabwe bestows marriage rights upon every person who has attained the age of eighteen years in that he or she is entitled to found a family. Every person is also protected from being compelled to enter into marriage against their will and persons of the same sex are prohibited from marrying each other. In essence section 78 creates the essential elements of a valid marriage which are further given effect by the Marriages Act [Chapter 5:17] and the Matrimonial Causes Act [Chapter 5:13]. Failure by parties to a marriage to comply with statutory requirements when contracting a marriage relationship renders their purported union void or voidable.
VOID AND VOIDABLE CIVIL MARRIAGES AND THEIR LEGAL EFFECTS
Section 13 of the Matrimonial Causes Act provides that in addition to any other ground on which a marriage is by law voidable, a marriage shall be voidable on the ground that the marriage has not been consummated owing to the willful refusal of the defendant to consummate the marriage; or that either party to the marriage was at the time of the marriage mentally disordered or defective within the meaning of the Mental Health Act: [Chapter 15:06]. In the case that one relies on the ground that the other party is mentally disordered or defective, an appropriate court shall not grant a decree of nullity unless it is satisfied that the plaintiff was at the time of the marriage ignorant of the facts alleged; the proceedings were instituted within a year from the date of marriage; marital intercourse with the consent of the plaintiff has not taken place since the discovery by the plaintiff of the existence of the ground for a decree.
A reading of Part III of the Marriages Act [Chapter 5:17] reveals that a marriage may be solemnized by a marriage officer only. This means that a marriages solemnized by a person who is not a designated marriage officer is a nullity. Section 15(3) makes it clear that any person, not being a marriage officer, who purports to solemnize a marriage, shall be guilty of an offence and liable to a fine not exceeding level 7 or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment. Persons who are classified as marriage officers under the law include a magistrate; heads of embassy of Zimbabwe in a foreign state, or Consular mission in foreign state; minister of religion (better known as Pastor) and certain persons may in certain circumstances be deemed to have been marriage officers if they solemnized a marriage in the bona fide belief that he or she was a marriage officer during the period, however this does not relieve any person from liability to prosecution for an offence of portraying himself or herself as a marriage officer. Chiefs are also marriage officers for customary law unions.
Section 18 (1) paragraph (a-d) of the Marriages Act provides that no marriage officer shall solemnise any marriage unless in respect thereof and in terms of the law or a prior law; each of the parties has caused banns of marriage to be published; or each of the parties has caused a notice of intention to marry to be published; or one of the parties has caused banns of marriage to be published and the other has caused a notice of intention to marry to be published and or a marriage licence has been issued. This means a married solemnised without the publication of buns, notice of intention to marry or the issuance of a marriage licence, will be a nullity and therefore void. Subsection (2) provides exceptions for parties who are subject to foreign marriage laws.
Adding on Section 26 (1) of the Marriages Act provides that, “no marriage shall be solemnised in pursuance” of lapsed buns, notice of intention to marry or marriage licence. This again means a marriage solemnised on the strength of such lapsed documents cannot be valid and is therefore void. Section 3 (1) of the Marriages Act provides that no person under the age of eighteen years may contract a marriage or enter into an unregistered customary law marriage or a civil partnership. This means that marriage with a person under the age of eighteen years is a nullity and it’s therefore void.
In addition, Section 7 of the Marriage Act prohibits marriages of persons related within specified degrees of relationships and the exceptions thereto. This means marriages of persons within specified relationships and outside the exceptions are void and in some circumstances voidable. Section 7 (1) (a&b) provides that with effect from the date of commencement of the Criminal Law Code no persons who are related to each other in any degree of relationship specified in section 75(2) of the Criminal Law Code shall be capable of contracting a valid marriage, unless, in the case of persons who are related to each other as first or second cousins, they satisfy the marriage officer that they belong to a community referred to in section 75(3) of the Criminal Law Code. Persons who are related to each other by affinity shall be capable of contracting a valid marriage if the affinity relationship between them is not one described in paragragh (b) or (j) of section 75(2) of the Criminal Law Code.
Subsection 2(a-c) further provides that if, on or after the date of commencement of the Criminal Law Code, a marriage is contracted or purports to be contracted between parties who are related to each other as first or second cousins without belonging to a community referred to in section 75(3) of the Criminal Law Code, and at the time of the solemnisation of the marriage, the parties knew or realised that there was a real risk or possibility that they were related to each other as first or second cousins, such marriage shall be void; one of the parties knew or realised that there was a real risk or possibility that they were related to each other as first or second cousins, such marriage shall be voidable at the instance of the party who was not so aware within twelve months from the time when he or she became so aware and if the parties did not know or realise that there was a real risk or possibility that they were related to each other as first or second cousins, such marriage shall be valid. Subsection (3) provides that for the avoidance of doubt it is declared that a marriage between persons who are related to each other as first and second cousins shall be valid if such marriage was contracted before the date of commencement of the Criminal Law Code.
Further to the above Section 30(1-3) of the Marriages Act provides that a marriage may be solemnised at any time by a marriage officer who shall solemnise any marriage in a church or other building used for religious service, or in a public office or private dwelling-house or other place approved by such marriage officer, in the presence of the parties themselves and at least two witnesses of or above the age of eighteen years. No person shall, under this Act, be capable of contracting a valid marriage through any other person acting as his or her representative. Failure to abide by these requirements renders the marriage a nullity and void at law.
Another point to consider is found in Section 31 of the Marriages Act which requires the marriage officer to cause each party to the marriage, to make specified vows of marriage if he is not a Minister of religion, or vows prescribed by his denomination if he is a Minister of religion. The vows of marriage other than those conducted by a minister of region will be worded as follows:
“I do solely declare that I know not of any lawful impediment why I, A.B., may not be joined in matrimony to C.D., here present. “and each of the parties shall say to the other—“I call upon these persons here present to witness that I, A.B., do take C.D., to be my lawful wedded wife (or husband).”
Parties will at that stage be married. The calling of those “here present to wittiness” the taking of the bride or groom as a lawfully weeded wife or husband indicates that a marriage comes into existence at that stage.
A reading of The Criminal Law (Codification and Reform) Act [Chapter 9:23], reveals that section103 defines a monogamous marriage as follows; “Monogamous marriage” means (a) a marriage celebrated in terms of the Marriage Act [Chapter 5:17] or any enactment repealed by that Act; or b) any other marriage celebrated inside or outside Zimbabwe under a law which prohibits the parties from marrying anyone else whilst they remain married to each other” .Section 104 of the Code makes it a criminal offence for a party married in a civil marriage to contract any other marriage during the subsistence of his or her marriage. This means a civil marriage cannot be validly contracted by a person who is already married to someone else.
CONCLUSION
In summation, before entering into a civil marriage parties must endeavor to comply with the statutory requirements in solemnizing their marriage to avoid their marriage being declared a nullity. In terms of Zimbabwe`s statute law a marriage shall be voidable, amongst other grounds on the grounds that parties did not consummate their marriage relationship and or either party was mentally disordered or defective at the time of solemnising the marriage which shall only be solemnised by a marriage officer. No marriage shall be solemnised unless required documents are published by both parties or by either party. A marriage with minors is void and it attracts a criminal penalty. There are also specified relationships which renders a marriage between the parties void however there are exceptions which renders the marriage voidable as discussed in the preceding paragraphs. Last but not least a marriage can only be solemnised in the presence of two witnesses above the age of eighteen and no person can enter into a marriage through a proxy and it is also a legal requirement that a marriage officer must ensure that the parties have made vows in terms of their religious beliefs or as provided for in terms of the law.