What’s in a name? Married women in Zimbabwe are taking the government to court over a procedure that compels them to adopt their husbands’ surnames as a precondition to official documents, including registering the birth of infant children.
Under the leadership of the Zimbabwe Women Lawyers Association (ZWLA), the women have embarked on a class action suit meant to free them from the burden of assuming their husbands’ surnames before getting a passport or a child’s birth certificate.
The lawsuit is based on an application by a married Harare woman, Violet Mutyamaenza, who has had problems registering the birth of her child and has been compelled to first change her surname.
In terms of Zimbabwean marriage law, a married woman is legally free to keep her last name. She also has the option to use it in combination with her husband’s.
However, for reasons that may partly be traced to the colonial period, the central registry continues to demand that women with registered marriages first drop their maiden names before they can be issued with official documents.
According to Emilia Muchawa, the director ZWLA, a countless number of women in the country are caught up in what she terms an unlawful application of the law. ”It’s extremely rampant; very many people are affected by this.”
She says to insist that married women change their names without giving them the option is illegal and discriminatory. ”We are saying without giving women a choice, it is against their democratic rights.”
The association is arguing that provisions of section 10C of the National Registration Amendment regulations of 1979 do not compel women with registered marriages to change their surnames to those of their husbands on their identity documents if they do not wish to do so.
Lawyer Wozani Moyo says when a woman gets married, the law allows her to retain her maiden surname yet the registrar-general’s office (births and deaths) still requires women to adopt their husbands’ names before they can get passports or their children’s birth certificates.
”It’s totally unconstitutional because it treats women as second-class citizens and denies them the right to express themselves,” she says.
”Effectively it means this practice contravenes a certain section of the bill of rights as well as the Birth and Deaths Registration Act which says the registrar-general may enter a husband’s name,” Moyo says. ”It is discretionary and that
discretion is being abused.”
Included in the class action are women with registered marriages who upon application for a new Zimbabwe passport or the replacement of a lost passport, have been obliged by the national registry to replace their surnames as they appear on their identity documents with their husbands’.
Also included in the lawsuit are married women who have infant children born of their marriages and who have been, or are being compelled, to change their surnames to those of their husbands before the children’s births can be registered.
The third group consists of married women who at some point, either voluntarily or otherwise, changed their surnames to those of their husbands but now wish to revert to their maiden surnames on their identity documents and Zimbabwe passports.
The case is expected to be heard in the next two months. ”For us it has reached an advanced stage,” says Muchawa who noted the most challenging stage was getting the High Court to agree to hear it.
The lawsuit aims to enforce a woman’s right in retaining her maiden name even when she needs to obtain official documents. Unmarried women used to face similar problems in that obtaining a passports for a minor born of out wedlock required the consent of the father who could be thousands of kilometers away, in another country.
However, a judgment handed down in April this year (Katedza versus Chunga), in a matter relating to a man and women formerly in a customary union, re-affirmed that a single mother has guardianship over her child.
Women’s groups, including ZWLA celebrated the judgment as a victory for their cause. ”The law is clear here,” Moyo says. ”An unmarried woman has guardianship over her child and may obtain a passport or birth certificate without even using the child’s father’s surname.”
However, apart from pushing for women’s recognition in the office of the Registrar-General, ZWLA is looking at the broader issues centering on marriage. The association is presently consulting widely and is lobbying for marriage reforms in Zimbabwe.
The initiative began in 2001 and is being undertaken with support from the country’s Ministry of Justice.
There are three types of marriages in Zimbabwe: a legally-registered customary marriage which allows polygamy and an unregistered customary union under-which the man complies with traditional procedure but does not register the marriage.
There is also a civil marriage which does not allow polygamy and can be registered at any magistrate’s court or church in the country. Community of property in this marriage only applies if the property is registered in both spouses’ names.
Among the many problems being experienced under the current marriage system is that only the High Court has powers to dissolve a civil marriage.
This creates a lot of financial and geographical problems since the court operates only from the two major cities.
Furthermore, the procedures of instituting divorce are complicated making it difficult for couples to divorce even if the marriage has broken down irretrievably.
Given that the three marriage types provide for different rights, there are situations where a man with a civil marriage goes on to take another wife in an unregistered customary law union without divorcing the first wife.
Moyo says the unregistered customary marriage is the source of most major problems women face in a matrimonial union. Problems centre on the fact that it is not recognized at law. ”Under this marriage women cannot go to court and divorce because they are considered unmarried.”
Generally, polygamy can be problematic, especially as the property rights of the numerous wives in that union are unclear.
Because of the present property regime which says marriages are out of community of property, most houses are registered in the name of the husband and therefore he can sell the house and the wife cannot stop him unless she is claiming divorce at the same time. This means that for a woman to have any share in a matrimonial home she has to claim for a divorce even if she does
not want one.
ZWLA’s consultations on marriage laws are expected to end next year when it hopes to influence Parliament into acting on people’s views. –Sapa