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LAW SEEKS TO GIVE WOMEN RIGHTS TO MARITAL PROPERTY

29/03/2022 08:39:00 Ntombi Mhlongo

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MBABANE – The common law rule, whereby a husband obtains the marital power over the property of his wife will soon be a thing of the past.

This is because two important pieces of legislation to regulate marriages and matrimonial issues have been gazetted by government. These are the Marriages Bill No.8 of 2022 and the Matrimonial Property Bill No.9 of 2022. It is stated in the Marriages Bill that the effect of the abolition of the marital power was to do away with the restrictions which marital power placed on the capacity of a wife to contract and to litigate.

Abolished

Worth noting is that in 2019, the High Court was called to issue a ruling to decide whether certain sections of the existing legislation on marriage should be abolished or not. At the time, legal representatives from the Women and Law of Swaziland (WLSA), were in court where they presented their arguments on why they felt certain sections were unconstitutional as they gave more power to men than women. The matter was before the High Court full bench and was heard by Principal Judge Qinisile Mabuza, Judge Nkululeko Hlophe and Judge Titus Mlangeni and the judgement ruled in favour of the applicants. The two new bills were made known through a government gazette dated March 22, 2022. As per the procedure, the two bills are expected to be tabled by the Minister of Justice and Constitutional Affairs Pholile Shakantu and debated in Parliament before they are enacted into a law. It should be noted that plans to enact the Marriage Bill became in limbo in 2020 after the Marriages Bill No.23 of 2019 was withdrawn in Parliament.

Legislation

This was after Members of Parliament (MPs) advised that three other pieces of legislation had to be drafted in order for the Marriage Bill to work. These are the Matrimonial Property Bill, Administration of Estates (Amendment) Bill and Intestate Succession Bill, all of which have to do with family law. At the time when the Marriages Bill of 2019 was withdrawn, Chairperson of the Ministry of Justice and Constitutional Affairs, House of Assembly Portfolio Committee member Kwaluseni MP, Mabhanisi Dlamini stated that when it was handed over to the portfolio committee and alternate members for scrutiny, however, during the workshops to familiarise themselves with it, was discovered that it could not be a stand-alone.
“It needed a lot of other provisions, which unfortunately, were not contained in the Bill which was why the decision was taken that the ministry goes back to the drawing board,” he said at the time.

Property

He stated that there was a need for the MPs to incorporate Section 34 of the Constitution into the Marriages Bill as that section spoke to the property rights of spouses. According to Section 34, a surviving spouse is entitled to a reasonable provision out of the estate of the other spouse, whether the other spouse died having made a valid will or not and whether the spouses were married by civil or customary rites. Previous Parliaments have missed the opportunity to fulfil this requirement, which states that Parliament shall as soon as practicable after the commencement of the Constitution enact legislation regulating the property rights of spouses including common-law husband and wife. The Constitution was passed in 2005.

Meanwhile, one of the provisions in the proposed Marriages Bill of 2022 touches on the act of cohabitation by couples. The bill provides that cohabitation shall not, by itself, constitute a marriage or give raise to a presumption of marriage. It provides that certain provisions shall have effect in relation to the rights of the parties to the relationship of cohabitation one of them being that one or both of the parties may, during the subsistence of the cohabitation register the particulars of any monetary and non-monetary contribution each party may have made during the cohabitation with the office of the registrar. “Where the parties cease to cohabit, a court order on application by either or both of the parties, shall distribute the property in accordance with the registered amounts of contribution made by either party,” reads part of the Bill.

Cohabitation

It also has a provision that failure to register shall not affect the rights of the parties but the burden to prove the facts of cohabitation or any contributions made shall be on the party alleging the existence of those facts. “Where the court is satisfied that the parties cohabited, and that there was some contribution, the court may distribute the property equitably between the parties,” the bill provides. It also contains provisions regarding when marriages become void. According to the bill, where one of the parties to a marriage is pregnant or is expecting a child with another person at the time of the ceremony, and the fact is unknown to the other party the injured party may apply to court to nullify the marriage. A party may also apply to the court to nullify a marriage if the other party refuses to consummate the marriage for a period of three months from the date of the marriage and when the other party is permanently impotent.

The bill states in Section 37 (1) that, “Within three months (3) after the completion of the ceremonies of a customary marriage, the chief or indvuna or marriage officer of the place where the marriage was celebrated or solemnised shall complete a prescribed form and present it for registration of the marriage or the issuance of a certificate to the Registrar.” The bill classifies a marriage that has not been registered within the stipulated period as voidable. “A marriage contracted in terms of this Act shall be voidable by virtue of non-registration within the period prescribed under the law applicable to registration of marriages.” The Marriage Bill of 2022 seeks to replace the Marriage Act No.47 of 1964.

Meanwhile, the Matrimonial Property Bill of 2022 has an objective to regulate the property rights of spouses, in particular, to provide for equal access to the property of spouses jointly owned or acquired during the subsistence of a marriage. It also aims to provide for such things as the equitable distribution of matrimonial property between the two spouses, abolition of marital power, agreements regulating property rights of cohabitees, accrual system in out of community of property and protection of matrimonial home and incidental matters.

Provisions

Section 3 of the Matrimonial Property Bill of 2022 contains the provisions of the abolition of marital power. The bill defines matrimonial property as the matrimonial home or homes, household goods and effects in the matrimonial homes, or any other immovable and movable property jointly owned and acquired during the subsistence of the marriage. It provides that trust property, including the property held in trust under the customary law does not form part of matrimonial property. “Where immovable property has been ascertained as matrimonial property, it is not already registered, it shall be registered in the names of the husband and wife, but where that property was registered in the name of one spouse, then not withstanding any law to the contrary, it shall be deemed to be matrimonial property,” reads Section 4 of the bill.