CHAPTER 25:01
MARRIAGE, DIVORCE AND FAMILY RELATIONS

ARRANGEMENT OF SECTIONS

   SECTION

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

   3.   Application

PART II
GENERAL

   4.   Registrar of Marriages

   5.   Publication of list of registrars

   6.   Registrars to be provided with books of marriage certificates

   7.   Registration of marriages

   8.   Marriage Register Book

   9.   Correction of clerical errors in marriage certificates

   10.   Evidence of marriage

   11.   Minister to license places of worship to celebrate marriages

   12.   Marriages recognized under the Act

   13.   Marriage by repute or permanent cohabitation

PART III
ESSENTIAL ELEMENTS OF MARRIAGE

   14.   Capacity to enter into a valid marriage

   15.   Marriages within prohibited degrees of kindred and affinity

   16.   Explanations to be given by a registrar

PART IV
PRELIMINARIES TO A CIVIL MARRIAGE

   17.   Declaration of marital status prior to marriage

   18.   Prohibition of polygamy in a civil marriage

   19.   Notice in a civil marriage

   20.   Signature of notice by person unable to write or understand the English language

   21.   Registrars to supply forms of notice

   22.   Notice to be entered in Marriage Notice Book and published

   23.   Publication of a marriage notice

   24.   Issue of a registrar's permit in a civil marriage

   25.   Power of Minister to grant special licence to marry

PART V
PRELIMINARIES TO RELIGIOUS AND CUSTOMARY MARRIAGES

   26.   Marriages under this Part to accord with customs and rites of religious body, sect, denomination or ethnic groups

   27.   Notice of intention to marry

   28.   Issue of a registrar’s permit in a customary or religious marriage

PART VI
OBJECTIONS TO ALL MARRIAGES RECOGNIZED UNDER THE ACT

   29.   Marriage to take place within three months after date of notice

   30.   Caveat

   31.   Caveat to be referred to court

   32.   Compensation and costs for wrongful caveat

PART VII
CELEBRATION OF CIVIL MARRIAGE

   33.   Marriage in a registrar's office

   34.   Oath to be administered in civil marriages

   35.   Marriage certificate to be signed

   36.   Marriage under special licence

PART VIII
CELEBRATION OF CUSTOMARY AND RELIGIOUS MARRIAGES

   37.   Application of Part V to marriages under this Part

   38.   Traditional Authority to register customary marriages

   39.   Marriage in a licensed place of worship

   40.   Oath to be administered in customary and religious marriages

   41.   Registrar not to celebrate marriage where there is impediment nor without permit

   42.   Customary or religious marriages under special licence

   43.   Register of customary or religious marriages

   44.   Entries to be made in marriage certificate

   45.   Signature to marriage certificate

   46.   Duplicate certificate to be sent to registrar

   47.   Marriage certificate to be registered

PART IX
RIGHTS AND OBLIGATIONS OF PARTIES TO A MARRIAGE

   48.   Right to consortium

   49.   Right to mutual marital confidences

   50.   Duty to maintain family

PART X
OFFENCES AND PENALTIES RELATING TO MARRIAGE

   51.   Polygamy and bigamy in a civil marriage

   52.   Marriage ceremony with a married person

   53.   Making false declarations in relation to marriage

   54.   Registrar unlawfully performing ceremony

   55.   Unlawful performance of ceremony by person not legally competent

   56.   Willful neglect of duty to fill up or transmit certificate of marriage

   57.   Personification in marriage

   58.   Fictitious marriage

PART XI
DIVORCE, JUDICIAL SEPARATION AND NULLITY OF MARRIAGE

   59.   General principles

   60.   Limitations of this Act

   61.   Divorce and judicial separation

   62.   Rape during judicial separation

   63.   Irretrievable breakdown of marriage

   64.   Evidence of breakdown of marriage

   65.   Circumstances in which decrees may be made

   66.   Arrangements for the future in case of divorce or judicial separation

   67.   Rebuttable presumption of condonation of adultery

   68.   Co-respondent

   69.   Duty of the court on the presentation of a petition for divorce

   70.   Proceedings for decree of presumption of death and dissolution of marriage

   71.   Distribution of property during judicial separation

   72.   Petition to reverse decree of judicial separation

   73.   Divorce proceedings after grant of judicial separation

   74.   Distribution of property upon dissolution of marriage

   75.   Effect of reversal or discharge of judicial separation or protection order

   76.   Costs against a co-respondent

   77.   Grounds for decree of nullity

PART XII
GENERAL PROCEDURE ON DIVORCE, JUDICIAL SEPARATION AND NULLITY OF MARRIAGE

   78.   Petitions

   79.   Service of petition

   80.   Examination of witnesses

   81.   Husband and wife compellable witnesses

   82.   Sittings in camera

   83.   Adjournment

   84.   Making decree nisi absolute

   85.   Enforcement of orders for payment of money

   86.   Re-marriage of the parties

   87.   Rules of court

PART XIII
MAINTENANCE DURING SUBSISTENCE OF MARRIAGE

   88.   Maintenance during subsistence of marriage

   89.   Spouse may apply for order

   90.   Notifiable family misconduct

PART XIV
MAINTENANCE FOLLOWING DIVORCE, JUDICIAL SEPARATION AND NULLITY OF MARRIAGE

   91.   Maintenance pending the suit

   92.   Permanent maintenance

   93.   Discharge or alteration of order for maintenance

   94.   Power to vary settlements

   95.   Welfare of children

PART XV
MAINTENANCE OF SINGLE PREGNANT WOMAN

   96.   Maintenance during pregnancy of a single woman

PART XVI
GENERAL PROVISIONS ON MAINTENANCE

   97.   Powers of the courts to make orders

   98.   Courts may vary or discharge orders

   99.   Mode of maintenance payments

   100.   Order for accommodation

   101.   Address to be provided to the court

   102.   Appeals against maintenance orders

PART XVII
EXTRA-TERRITORIAL ENFORCEMENT OF MAINTENANCE ORDERS

   103.   Registration of a maintenance order made in a foreign country

   104.   Transmission of order in Malawi

   105.   Power to make order against a person resident in a foreign country

   106.   Chief Justice to make rules for facilitating communication

   107.   Mode of enforcing orders

   108.   Proof of documents

   109.   Depositions to be evidence

   110.   Power of President to extend the application of this Act to other countries

PART XVIII
MISCELLANEOUS

   111.   Establishment of Family Counseling Panels

   112.   Conduct by third parties

   113.   Forms and fees

   114.   Repeals and savings

4 of 2015
G.N. 20/2015

An Act to make provision for marriage, divorce and family relations between spouses and between unmarried couples, their welfare and maintenance, and that of their children; and for connected matters

[3RD JULY, 2015]

PART I
PRELIMINARY

1.   Short title

   This Act may be cited as the Marriage, Divorce and Family Relations Act.

2.   Interpretation

   In this Act, unless the context otherwise requires—

   "adultery" means voluntary sexual intercourse by a married person with a person other than his or her spouse;

   "certified copy", in relation to an order of a court, means a copy of the order certified by a proper officer of the court to be a true copy of the order;

   "child" means a person who is below the age of eighteen years;

   "civil marriage" means a marriage celebrated by a registrar in accordance with Part IV and Part VII, respectively;

   "cleric" means a recognized cleric or minister of a religion, religious body, denomination or sect, belonging to a place of worship licensed as a place for the celebration of marriage under section 11;

   "cohabitation" means the fact of a man and a woman, not married to each other in accordance with this Act, living together as, or as if they were, husband and wife;

   "consortium" means the fact of a husband and wife living together, and includes a right to consummation, companionship, care, maintenance and rights and obligations commensurate with the status of marriage;

   "country" includes any protected State and any trust territory administered by the Government of any country;

   "court" means the High Court or other court having jurisdiction as specified under this Act and, in relation to any claim within its jurisdiction, includes a traditional or local court;

   "customary marriage" means a marriage celebrated in accordance with rites under the customary law of one or both of the parties to the marriage;

   "dependant", in relation to another person against whom there is a maintenance order by a court or tribunal of a foreign country, means such person as that other person is, according to the law in force in that foreign country, liable to maintain;

   "habitual drunkard" includes a person whose excessive drinking of liquor or taking of habit forming substances prevents or otherwise makes him or her unable to provide reasonable maintenance for a spouse or any child of the marriage dependent on such person;

   "irretrievable breakdown of marriage" means a situation where one or both of the spouses prove to the court that they can no longer live together in consortium as husband and wife;

   "judicial separation" means the separation of a husband and wife by court decree;

   "maintenance order" means an order for the payment in cash or of a specified cash value towards the maintenance of a spouse, a single pregnant woman, a child, a dependant, or a person entitled to maintenance under this Act;

   "marriage notice" means the prescribed notice of marriage required under this Act;

   "Marriage Register Book" means a book of register issued to every registrar for the registration of marriages under this Act;

   "matrimonial property" includes—

   (a)   the matrimonial home or homes;

   (b)   household property in the matrimonial home or homes;

   (c)   any other property whether movable or immovable acquired during the subsistence of a marriage which by express or implied agreement between the spouses or by their conduct is used, treated or otherwise regarded as matrimonial property;

   "non-monetary contribution" means the contribution made by a spouse for the maintenance, welfare or advancement of the family other than by way of money, and includes—

   (a)   domestic work and management of the home;

   (b)   childcare;

   (c)   companionship;

   (d)   the endurance of the marriage; or

   (e)   any other manner or form of contribution as the court may consider appropriate;

   "permit" means a certificate issued by the Registrar under section 24 or section 28, as the case may be, after the preliminary formalities of marriage have been completed permitting the parties to celebrate their marriage;

   "registrar" means the Registrar of Marriages or other public officer or other person acting under his or her authority as specified under section 4 (3);

   "Registrar of Marriages" means the public officer designated as such under section 4;

   "religious marriage" means a marriage celebrated by a cleric in accordance with the recognized rites of a religion, religious body, denomination or sect to which one or both parties to the marriage belong;

   "sex", in relation to the gender of a person, means the sex of that person at birth.

3.   Application

   This Act shall apply to marriages entered into on or after the day it comes into operation; but Part IX shall apply to all marriages regardless of the date they were celebrated.

PART II
GENERAL

4.   Registrar of Marriages

   (1) There shall be the office of the Registrar of Marriages which shall be a public office.

   (2) The officer for the time being holding or acting in the office of Registrar General shall be the Registrar of Marriages.

   (3) The following offices shall perform the functions of the Registrar of Marriages subject to the general or special direction of the Registrar of Marriages (and are, in this Act, hereinafter referred to as "registrars")—

   (a)   the District Commissioner in respect of the district of his or her jurisdiction;

   (b)   a traditional authority with powers to register a marriage under the Act; and

   (c)   a cleric.

5.   Publication of list of registrars

   The Minister shall, by order published in the Gazette, publish a list of registrars of marriages under this Act.

6.   Registrars to be provided with books of marriage certificates

   (1) The Registrar of Marriages shall deliver to the several registrars marriage register books in duplicate and with counterfoil in Form A in the First Schedule.

   (2) The several registrars shall have custody of the books of marriage certificates delivered to them.

7.   Registration of marriages

   Every marriage celebrated in accordance with this Act shall be registered by a registrar.

8.   Marriage Register Book

   (1) A registrar shall enter into the Marriage Register Book all particulars of certificates of marriage which have been filed in his or her office, place of worship or work in Form A in the First Schedule.

   (2) An entry under subsection (1) shall be—

   (a)   made in its chronological order;

   (b)   signed by a registrar; and

   (c)   indexed in a manner that is best suited for easy reference.

   (3) A registrar shall make the Marriage Register Book available for inspection during office hours and shall on application make certified copies from it upon payment of a fee prescribed in the Second Schedule.

   (4) Within ten days after the last day of each month, every registrar shall send to the Registrar of marriages a certified copy of all entries made by him or her in the Marriage Register Book during the preceding month, and the Registrar of marriages shall file the certified copy in his or her office.

9.   Correction of clerical errors in marriage certificates

   (1) A registrar may correct a clerical error in any certificate of marriage filed in his or her office upon the production of the certificate delivered by any party to the marriage.

   (2) A registrar shall authenticate any correction in a certificate of marriage by his or her signature, official stamp and the date of the correction.

10.   Evidence of marriage

   The following shall be admissible as evidence of a marriage to which it relates—

   (a)   a certificate of marriage filed in the office of a registrar;

   (b)   a copy of a certificate of marriage, signed and certified as a true copy by a registrar;

   (c)   an entry in a Marriage Register Book; or

   (d)   a signed and certified copy of an entry in a Marriage Register Book.

11.   Minister to license places of worship to celebrate marriages

   (1) The Minister may, upon application, license any place of worship to be a place for the celebration of marriages under this Act.

   (2) Notwithstanding subsection (1), a place of worship shall not be licensed unless the applicant or the person in charge of the place of worship has legal personality under the Trustees Incorporation Act or any other written law to operate the place of worship.

   (3) The Minister may, at any time, revoke the licence under subsection (1) if he or she satisfied upon reasonable grounds that a place is not fit for the celebration of marriages under this Act.

   (4) The Minister shall give notice of the licensing of a place of worship or the revocation of the licence—

   (a)   in the Gazette; and

   (b)   to the person in charge of the place of worship.

12.   Marriages recognized under the Act

   (1) A marriage recognized under this Act shall be either—

   (a)   a civil marriage;

   (b)   a customary marriage;

   (c)   a religious marriage; or

   (d)   a marriage by repute or permanent cohabitation.

   (2) A marriage conducted in accordance with the laws of another country, where one or both of the parties is subject to the laws of that country, shall be recognized in Malawi as a valid marriage.

   (3) All marriages recognized under this Act shall have the same legal status.

   (4) Without prejudice to any procedures prescribed for marriage under this Act, any institution or procedure that traditionally facilitates the celebration of a customary marriage shall continue to be recognized as such under this Act.

13.   Marriage by repute or permanent cohabitation

   A marriage by repute or permanent cohabitation shall only be recognized under this Act upon a finding of a court of competent jurisdiction where that court considers—

   (a)   the length of the relationship, which, in any event, shall not be less than five years;

   (b)   the fact of cohabitation;

   (c)   the existence of a conjugal relationship;

   (d)   the degree of financial dependence or interdependence and any agreement for financial support between the parties;

   (e)   ownership, use and acquisition of property;

   (f)   the degree of mutual commitment to a shared life;

   (g)   whether the parties mutually have, care for, or support, children;

   (h)   the reputation of the parties in the community as being married and the public display of aspects of their shared relation; and

   (i)   any other factors that the court considers fit.

PART III
ESSENTIAL ELEMENTS OF MARRIAGE

14.   Capacity to enter into a valid marriage

   Subject to section 22 of the Constitution, two persons of the opposite sex who are both not below the age of eighteen years, and are of sound mind, may enter into marriage with each other.

15.   Marriages within prohibited degrees of kindred and affinity

   A marriage celebrated between—

   (a)   a man and any of the persons mentioned in the First Column of Parts I, II, and III of the Third Schedule;

   (b)   a woman and any of the persons mentioned in the Second Column of Parts I, II, and III of the Third Schedule,

shall not be valid on the ground of kindred or affinity.

16.   Explanations to be given by a registrar

   A registrar shall explain to the parties intending to marry the prohibited degrees of kindred or affinity, the prohibition on polygamy and the penalties which may be suffered for offences under this Act, and shall cause the parties to sign a prescribed form of acknowledgement of such explanation in Form K in the First Schedule.

PART IV
PRELIMINARIES TO A CIVIL MARRIAGE

17.   Declaration of marital status prior to marriage

   A person entering into a marriage under this Part shall first prove, by way of declaration before a registrar, that he or she is single.

18.   Prohibition of polygamy in a civil marriage

   A person who contracts a civil marriage shall be married to one spouse only.

19.   Notice in a civil marriage

   (1) A party to an intended marriage shall sign and give to the registrar a notice in Form B in the First Schedule.

   (2) Where the party to the intended marriage giving the notice desires the marriage to be celebrated in a district other than that in which he or she resides, that party shall so inform the registrar accordingly.

   (3) If a marriage is intended to be celebrated in another district, the registrar of the original district shall forward a copy of the notice to the registrar of the other district, and immediately upon receiving the notice, the other registrar shall affix the notice onto the outer door of his or her office or place of worship or work.

20   Signature of notice by person unable to write or understand the English language

   (1) If the person giving notice under section 19 is unable to or understand the English language, it shall be sufficient if he or she places a mark or a cross as appropriate in the presence of a person literate in the English language and that person shall attest the marking or crossing.

   (2) An attestation made under subsection (1) shall be in Form C in the First Schedule.

21.   Registrars to supply forms of notice

   Every registrar shall supply forms of the notice under section 19 without charge to any person applying for them.

22.   Notice to be entered in Marriage Notice Book and published

   A registrar shall enter the notice under section 19 in the Marriage Notice Book.

23.   Publication of a marriage notice

   After entering a notice of marriage in the Marriage Notice Book, the registrar shall publish the notice by affixing a copy of it onto the outer door to his or her office or place of worship or work, there to be kept exposed until he or she grants a permit, or until three months have elapsed, whichever is the sooner.

24.   Issue of a registrar's permit in a civil marriage

   A registrar who receives the notice under section 19 shall at any time after the expiry of twenty-one days and before the expiry of three months from the date of the notice, issue a permit in Form D in the First Schedule if he or she is satisfied that—

   (a)   the parties have complied with sections 14, 15, 17 and 18;

   (b)   one or both of the parties has or have been resident within the district at least fifteen days preceding the granting of the permit;

   (c)   there is no caveat under section 30 lodged against the marriage or if a caveat has been lodged, it has been removed in accordance with the procedure set out in Part VI;

   (d)   the parties are not within the prohibited degrees of kindred or affinity; or

   (e)   neither of the parties to the intended marriage is married to another person.

25.   Power of Minister to grant special licence to marry

   The Minister, upon proof being made to him or her by affidavit that there is no lawful impediment to a proposed marriage, may, in his or her discretion, dispense with the giving of notice, and with the issue of the permit of registrar, and may grant a special licence, in Form E in the First Schedule, authorizing the celebration of a marriage between the parties named in the licence by a registrar.

PART V
PRELIMINARIES TO RELIGIOUS AND CUSTOMARY MARRIAGES

26.   Marriages under this Part to accord with customs and rites of religious body, sect, denomination or ethnic groups

This section of the article is only available for our subscribers. Please click here to subscribe to a subscription plan to view this part of the article.