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N.M PHIRI MANAGING PARTNER

Unpacking the Marriages Bill and it’s impact on the administration of pension funds “Till Pensions Do Us Part”. N.M PHIRI MANAGING PARTNER. Introduction. The features of any modern legal system is its ability to change, evolve and adapt to changing times.

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N.M PHIRI MANAGING PARTNER

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  1. Unpacking the Marriages Bill and it’s impact on the administration of pension funds“Till Pensions Do Us Part” N.M PHIRI MANAGING PARTNER

  2. Introduction • The features of any modern legal system is its ability to change, evolve and adapt to changing times. • The Constitution of Zimbabwe 2013 is a beacon of this system by virtue of its progressive nature. • The Government of Zimbabwe has since been on a mission to align and amend all laws in the country to the principles and spirit underlying the Constitution. • The Marriage Bill 2019 is one of the recent Legislation to undergo this overhaul to align it with the Constitution.

  3. Constitution of Zimbabwe and Marriage • Section 26 of the Constitution-places obligation on the State to ensure; -all marriages entered into by consent of all parties -child marriages are prohibited -equality of spouses in marriage and at dissolution • Section 78- Marriage Rights -18 years and above has right to found a family -consent required to enter any marriage -prohibits same sex marriage

  4. Marriage Laws in Zimbabwe • Marriages Act (Chapter 5:11) • Customary Marriages Act (Chapter 5:07) • Married Persons Property Act (Chapter 5:12 ) • Matrimonial Causes Act (Chapter 5:13) • Customary Law and Local Courts Act (Chapter 7:05) • Administration of Estates Act (Chapter 6:01)

  5. Marriages Act (Ch 5:11) • This is the law which governs registered civil marriages in Zimbabwe. • Marriages under this Act are monogamous in nature, meaning to say it is the lawful union of two persons to the exclusion of all others and no person may contract any other marriage during the subsistence of the marriage under general law.

  6. Customary Marriages Act (Ch 5:07) • This law covers registered customary law marriages in Zimbabwe. • Subject to the customary law of the persons concerned, this marriage can be polygamous or potentially polygamous. • The Act also provides that an unregistered customary law union is not a valid marriage at law but for purposes of customary law and custom relating to the status, guardianship, custody and rights of succession of the children of such marriage, they are to be regarded as a valid marriage.

  7. Married Persons Property Act(Ch 5:12) • This is the law detailing the marital property regime of marriages in Zimbabwe • The system that governs property rights in marriage is known as out of community of property • What this means is that there is basically no joint estate. Thus, if a house is bought and is registered in the husband’s name, that house remains his sole property • However , with marriages in community of property, both parties are the owners of the joint estate, meaning assets that were gained before the marriage also form part of this joint estate.

  8. Matrimonial Causes Act (Ch 5:13) • This is the law regulating property distribution, maintenance and other issues upon dissolution of marriages in Zimbabwe • The Act seeks to achieve a just and equitable distribution, apportionment of assets between the spouses • The Act does not apply on dissolution of marriage by death

  9. Customary Law and Local Courts Act (Ch 7:05) • In respect of customary law marriages this Act has provisions regulating customary law applying to marriage for example polygamy and dissolution of unregistered customary law marriages. • Provisions of section 3 of the Act deals with the application of customary law

  10. Administration of Estates Act (Ch 6:01) • This is the law which governs succession upon death of spouses. • It also modifies certain aspects of marriage laws relating to deceased estates subject to customary law

  11. Constitution of Zimbabwe and Pension fund laws. • Section 71 of the Constitution- Property Rights • Section 71 which defines pension benefits, enshrines the right to property and in subsection 4 provides that a person has a vested or contingent right to the payment of a pension benefit, a law which provides for the extinction or diminution of that right is regarded, for the purposes of subsection (3), as a law providing for the compulsory acquisition of property.

  12. Insurance and Pensions Commission Act [Chapter 24:21] • The Act establishes the Insurance and Pensions Commission a statutory body to regulate the insurance and pensions industry with the objective of developing the industry for the protection of insurance policyholders and pension fund members’ interests. • The commission also supervises and administer the business and operation of insurance companies and pension funds.

  13. Pension and Provident Fund Act (Ch 24:09) • This is the Act which governs pension and provident funds and their administration in Zimbabwe • It defines a pension as an annuity acquired through a fund and a pension fund is defined to mean any fund the principal object of which is to provide for the payment of a pension to a person who is or has been a member of the fund on his retirement.

  14. Statutory Instrument 323 of 1991 (Pension and Provident Funds Regulations) • Section 28 stipulates the order in which pension benefits are to be paid out. • Surviving spouse gets first preference followed by dependents • Fund member given option to nominate-merely as a guide to the Board of Trustees • Upon death of member, notwithstanding choice/election made, pension benefit will be paid out to the persons set out in the order specified.

  15. Marriages Bill • The Bill seeks to achieve the following: • To repeal and replace the Customary Marriages Act [Chapter 5:07] and the Marriage Act [Chapter 5:11] • To consolidate the laws relating to marriage. • To have one Act of Parliament which govern Marriages. Currently there are two Acts of Parliament which govern marriages, namely the Customary Marriage Act [Chapter 5:07] and the Marriage Act [Chapter 5:11] • To provide for the recognition and registration of customary law unions.

  16. Marriage Bill cont…. • To align our marriage laws with the constitution of Zimbabwe • To bring about the equality of all marriages

  17. Key provisions of the Bill The following are some of the key provisions of the Bill • Section 2 defines a Child as a person under the age of eighteen years. The aforesaid section also defines “marriage” as meaning a marriage solemnized, registered or recognized as such in terms of this Act, being a union between persons of the opposite sex. • Section 3 outlaws child marriages. It 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” • In terms of section 4 of the Bill, each party to the marriage must give his or her free and full consent to the marriage. In other words, consent to marriage will no longer be given by legal guardians but by the parties to the marriage themselves. • Section 6 provides that parties to any marriage have equal rights and obligations during the subsistence, and at the dissolution of the marriage.

  18. Key provisions of the Bill cont… • In terms of section 9, every chief shall by virtue of their office and so long as they hold such office, be a marriage Officer in customary law marriages for the district in which they hold office. • Section 15 provides for the solemnization of every marriage contracted according to customary law. • In terms of section 16, a marriage contracted solely according to customary law and not solemnized in terms of this Act must be registered by the parties to such marriage within three months of the date the union was entered into. • Section 40 recognizes and legitimizes civil partnerships (removed from the Bill as not being in line with our country’s values)

  19. Analysis of the Bill’s key provisions which affects Pension fund administration - Section 2 • Section 2 of the Marriage Bill-Interpretation and Definitions Clause • Katiyo vs. Standard Chartered Zimbabwe Pension Fund 1994 ( 1 ) ZLR 225-wife married according to Customary law denied pension benefits of deceased husband. Court ruled that current law did not recognize customary law wife to be treated as a spouse for purposes of payment of annuity • Inadequecy of the Bill-does not define a “spouse”. • Therefore shortcomings of Marriage Act and Customary Act still not addressed. • In the absence of Definition- Fund still has discretion to determine who a “SPOUSE” is for purposes of paying out the benefits.

  20. Analysis of Section 3 - Age of Consent • LovenessMudzuru and Anor vMin of Justice, Legal & Parliamentary Affairs N.O & 2 Ors- “The effect of s 78(1) as read with s 81(1) of the Constitution is very clear. A child cannot found a family. There are no provisions in the Constitution for exceptional circumstances. It is an absolute prohibition” • By defining a child as a person under the age of eighteen years and providing that no person under the age of eighteen years may contract a marriage or enter into an unregistered customary law marriage, the Bill essentially outlaws child marriages, in line with Section 78 (1) as read with Section 81(1) of the Constitution. • Previous position in Customary Marriages-person could enter marriage at the age of 16 and considered to be a spouse upon dissolution of Marriage. Thus, if the pension fund rules entitled a spouse to claim pension benefits she could equally make her claim to the administrators of the fund.

  21. Analysis of Section 3 cont…. • This age limit is based on the fact that a person who has attained the age of 18 has reached a certain level of maturity. This has the potential of making the administration of pension funds easier as a person who is 18 and above is more mature and is more aware of how to enforce their rights as opposed to dealing with a minor. On the other hand, this raises questions of potential prejudice suffered by this Minor • In light of pension fund administration what this entails is that only a person who has attained 18 years and entered into marriage can claim pension benefits as spouses which are entitled to them upon dissolution of such marriage or the death of a spouse. • Aligning the age limit in all types of marriages, results in less red-tape for the Fund administrators to deal with, as only persons who had attained the age of 18 upon entering the marriage will be regarded as spouses.

  22. Analysis of Section 3 cont… • HOWEVER,the reality we all have to contend with, is that child marriages are still occurring throughout the county. • Problems arise when a child under the age of 18 comes forward to claim pension benefits of a deceased member, together with dependents being minor children out of this union. • For the reason that a marriage is considered valid ONLY if the party is 18 years and above, among other requirements. • Does this mean then that the child aged below 18 years is not entitled to receive pension benefits? Does this not unfairly discriminate and further prejudice the child? • Section 28 (2) (b) of Statutory Instrument 323 of 1991 will provide relief in this instance, as it states that IF there is no surviving spouse, dependent children will be entitled to benefits. • Ultimately, the decision lies with Board of Trustees, and how they interpret meaning of the word “SPOUSE”

  23. Analysis of Section 6 of the Bill- Equality of Marriages • Section 6 of the Bill provides that all marriages are equal, and that spouses have equal rights and obligations during marriage and at its dissolution. So what does this mean? Whilst marriages may be equal to the extent to which they will be governed by one Act of Parliament vis-à-vis the division and distribution of the parties assets upon divorce, can the civil marriage, the customary law marriage, and the unregistered customary law union be equal? • Though equality as envisaged by the Bill must be understood within the context of the proprietary regime governing the marriage concerned at dissolution. What does this also mean with regards to administration of pension funds by the administrator.

  24. Analysis of Section 6 of the Bill cont… • With the provision of all parties to ANY marriage being equal during the subsistence and at dissolution of marriage, this means that in instances where previously, in an UCLU, where the marriage is dissolved through death, junior wives were left in a severely disadvantaged position, with the more senior wives claiming most of the deceased husband’s property. • The Bill therefore seeks to bring all parties in the marriage, to an equal status, where should the marriage be dissolved, ALL parties are regarded as spouses, with an equal entitlement to pension benefits.

  25. Analysis of Section 16 of the Bill • Katiyo vs. Standard Chartered Zimbabwe Pension Fund 1994 ( 1 ) ZLR 225-Spouse married in UCLU unable to receive pension benefits of deceased member because she failed to produce marriage certificate. • Section 16 further recognizes the existence of unregistered customary law unions. However, it requires that a marriage contracted solely according to customary law and not solemnized MUST be registered by the parties to such marriage within three months of the date the union was entered into. • For pension fund administrators this provision should come as a relief as this makes the administration and distribution of funds easier. It also offers protection to the surviving spouse upon death of the spouse, as a marriage certificate offers security and serves as proof of marriage in terms of claiming pension benefits.

  26. Cont… • Although the Bill seeks to regulate Unregistered customary law unions, failure to register one’s union within 3 months, results in the old position being reverted to for purposes of determining the status of the union. • This is still a loophole that needs to be addressed.

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