Gender and Land Rights Database

Malawi

Women's property and use rights in personal laws



In Malawi, the laws governing marriage are derived from different sources: statutory law, customary law, common law and the Constitution. From these different sources stemmed different regimes with different rights and obligations. At present, the law recognises three types of marriages: statutory marriage, customary marriage and marriage by repute or permanent cohabitation.

1.    Statutory marriage:
The Marriage Act, Act No. 3, 1902, Chapter 25: 01, Laws of Malawi:
- Regulate the marriages under statutory law. The law follows the old English common law system. Under this law marriages are monogamous (12).
- Section 19: Prohibits marriage under the age of 21 unless consent is otherwise obtained in writing.
- Section 43: Makes bigamy an offence punishable by law and the sentence is five years imprisonment (16). This section therefore prohibits marriage where either of the intended parties has been married under customary law. Further, any person whose marriage is contracted under this Act cannot enter into any other marriage under any law.

2.    Customary marriages:
- There is no single Malawian customary law as customs vary from one area to another.
- Customary marriages may be polygamous;
- In theory, men should consult and seek the approval of their wives before they contract another marriage but in practice this is never done;
- There is no specific age requirement. Puberty and not age is generally the determining factor;
- A husband has an obligation to provide a house for his wife or wives, to support them and his children;
- A wife is obliged to take care of the household and the children.

3.    Marriage by repute or permanent cohabitation:
- Not governed by any law but the courts have tended to provide cohabitating couples access to the same rights and privileges as couples married under statutory or customary law;
- The courts have been left to decide what constitutes a marriage by repute or permanent cohabitation.

The Divorce Act, No. 5, 1905, Chapter 25:04, Laws of Malawi:
- Marriages registered under the Marriage Act, 1902 cannot be terminated within three years except on the ground of exceptional hardship or exceptional depravity (12).
- Section 5 outlines five grounds for divorce: adultery, desertion, cruelty, insanity, and if the husband has been guilty of rape, sodomy or bestiality.
- Section 23 allows a husband to claim damages for the adultery of his wife but not viceversa.
- The Act does not provide for the division of matrimonial property upon dissolution of the marriage. This matter has been left entirely to the courts to decide.

- The African Marriage (Christian Rites) Registration Act, Chapter 25:02 provides for the registration of African marriages celebrated according to Christian rites (16). African Christian Marriages, which are customary marriages, are potentially polygamous except in the Roman Catholic, Seventh Day and Anglican Churches who also register their Marriages under the Marriage Act (12).

The Married Women Maintenance Act, 19488, amended in 1998:
- Makes provision for maintenance of a married woman and her children living apart from her husband, where the husband:  1) has been convicted of an offence which is committed against the wife; 2) disappeared from home; 3) is guilty of continuous acts of cruelty to her or her children; 4) neglected to provide support for her children; 5) is consistently having sexually transmitted diseases; and 6) has forced her to become a prostitute (16).
- Cohabitant, single and unmarried mothers cannot claim maintenance under the Act.
- Section 6 also prevents women who have been found guilty of adultery from making an application for maintenance.

- Although the Constitution provides for equal rights for women to the acquisition and maintenance of property rights without regard to their marital status, no specific law governs matrimonial property rights between spouses during marriage and courts are reluctant to assume joint ownership without a clear provision in the law (12).

Sources: numbers in brackets (*) refer to sources displayed in the Bibliography