High Court Judge Zione Ntaba has ordered an immediate review of the Marriage, Divorce and Family Relations Act (MDFRA) to prevent legal discrimination against customary marriages.
The order is from the appeal judgment in the divorce case of Maureen Goodson and Cidrick Chidothi, dated October 4, 2024.
Goodson appealed to the High Court against a Third Grade Magistrate’s ruling in Machinga, which determined that there was no customary marriage between the parties as outlined in sections 26, 27, and 28 of the MDFRA.
Section 26 of the MDRFA which states that subject to sections 14 and 15, the procedures preceding the celebration of a religious or customary marriage shall be governed by the customs or rites which are usual among the ethnic group, religion or sect under which the marriage is celebrated.
Section 27 states that; (l) A person intending to marry under this Part shall in addition to the customs or rites referred to in section 26, give notice of intention to marry in writing to a registrar in Form B in the First Schedule, (2) the registrar shall enter the notice in the Marriage Notice Book and (3) the notice shall be displayed for twenty-one days in a conspicuous place on the premises of the office of the registrar.
Section 28 provides that (l) at the expiry of the twenty-one days referred to in section 27, the registrar shall issue a marriage permit in Form D in the First Schedule, (2) a marriage permit under subsection (l) shall be issued if— (a) the parties have complied with sections 14 and 15; and (b) there is no caveat under section 30 lodged against the marriage or if a caveat was lodged, it has been removed in accordance with the procedure set out in Part VI.
While noting that the Chidothi was reliable for the breach of promise to marry, the Magistrate ruled that the two had done the traditional formalities however, there was no customary law marriage because they did not fulfill the formalities set done in section 37 of the MDFRA which entails that the two should have traditionally publicized their intention as such there was no desertion as well as negligence.
The court heard that the two undertook marriage formalities in 2015 with no specific date or month while the MDFRA came into operation on July 3 2015.
However, Ntaba ruled against the Magistrate’s observation that the two were not legally married.
“Taking into account the facts herein, it is critical that the Court points out that the non-adherence to the prescripts of section 27, 28 and 29 of the MDFRA cannot be faulted on the parties. Judicially, this Court took a perusal of cases post 2015 and the decisions have shown that dissolution of customary marriages cases do not address this issue, and courts have rarely verified this aspect.
“It is therefore imperative that this Court deal with the parties herein to ensure that justice is delivered. Furthermore, taking into account the issues that the said section 27, 28 and 29 of the MDFRA raise a very fundamental lapse in enforcement, this Court was at pains on how to address it. Firstly, the implications of non-adherence of this section by the highest population of marriages means that a lot of marriages would be rendered null and void.
“It is not the intention of the Court to create such panic in society. It is however important the Court acknowledges that the law once promulgated must be strictly adhered to by all. It is critical to highlight that a significant reason on why the above sections have been ignored is because the Government through the relevant Ministries of Gender, Justice and to some extent Local Government did not do the needful. The MDFRA created a new regime especially for customary marriages.
“In expanding, the new regime increased the scope of who could be considered a registrar. In section 2 of the MDFRA, a registrar is defined as the Registrar of Marriages or other public officer or other person acting under his or her authority as specified under section 4 (3) whilst the Registrar of Marriages is the public officer designated as such under section 4.
“Therefore, the new role that the MDFRA gave to Chiefs was not properly capacitated and further Malawians for the looks of things were also not made aware of how the new law should be adhered to as previously as long as a customary marriage followed the rights and such was indicated in court, it was sufficient for a court to determine that a customary marriage existed
“Accordingly, it is important that those who are married under customary also enjoy the rights and protections espoused in the Constitution including equality and non- discrimination in section 20(l)that is discrimination of persons in any form is prohibited and all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, disability, property, birth or other status or condition,” reads part of the judgement
Ntaba therefore, ordered the executive through the Ministry of Justice, Ministry of Gender and Ministry of Local Government together with the Legislature to, within three months, ensure that customary marriages which were celebrated post 2015 and did not fulfil the prescripts of section 27. 28 and 29 of the MDFRA are legalized to avoid such marriages being the only ones not fully recognized in Malawi.
“They should also operationalize and capacitate section 5 of the MDFRA by gazetting the traditional authorities who are designated as registrars under section 4 of the MDFRA within one (l) month and deliver the relevant documentation to enable the implementation of the law by all relevant registrars especially the traditional leaders as per section 6 of the MDFRA within one (l) month,” reads part of the judgement
