Various sections of the society, most especially the religious groups have with a great euphoria condemned the recent attempt to enforce the registration of marriages by the Uganda Registration Services Bureau. Some have seen it as an attack on the role bestowed on religious clerics to bless marriage unions; or that it is a colonial law intent on regulating something that is an inherent right; or a ploy to get money from churches among others.
Historical view
Various marriage practices around the world in different cultures have since followed the cultural dictates of the societies where such marriages have been created.
Among the ancient Greece there was no requirement for a civil ceremony to constitute a valid marriage. The parties involved, the husband and wife had to have a mutual agreement to regard each other as such.[i]
While the ancient Roman Society celebrated several types of marriages among which were the traditional marriage called ‘conventio in manum’ and the free marriage called ‘sine manu’. While these marriages required a formal ceremony with witnesses, there was the bedrock of inheritances. In the former, the woman lost her inheritance right in her father’s home and gained an inheritance right from her husband. This placed the woman under the authority of her husband while in the latter; the woman remained under the full authority of her father and thus never lost her inheritance rights from her father.[ii]
The early Christian era between 30 and 325 AD mirrored the thought of marriage as a private matter with no requirement of uniform religious or other ceremony. Other sources of writings indicate however that around 110AD suggestions of a necessity of the approval of the bishop was requisite that ....’Marriage may be according to God, and not after their own lust.’ It appears therefore church involvement was to ensure moral sanctity of the institution of marriage.[iii]
Until 1545, Christian marriages in Europe were by mutual consent, declaration to marry and upon the consummation. The presence of a priest and witnesses was not required. By the middle ages, the church played the role of registering marriages though this was not obligatory. During this time, the church opposed marriages that were imposed or arranged and promoted free consent of parties. With the wider spread of Christianity this view of free consent spread.
However after the Protestant reformation, the role of recording marriages and setting the rules of marriage passed to the state as a classical mirror image of Martin Luther’s view that marriage was a ‘worldly thing’[iv]. By 17th Century many of the Protestant European Countries embraced state involvement in marriage matters. In England, marriage by consent and cohabitation was valid until the Lord Hardwicke’s Act in 1753; this Act whose full title was “An Act for the Better Preventing of Clandestine Marriage” brought on board the formal requirement of the performance of a religious ceremony observed by witnesses.
Clandestine marriages were those which had an element of secrecy to it: having taken place away from a home parish, and without either banns or marriage license.
The mischief at the time was the difference in Scots Law and the role of the separate established Church of Scotland. There grew a tradition of couples from England and Wales eloping to Scotland, most famously to marry at border towns. While the British required a parental consent and set a minimum age of 21 for marriage, parental consent was not required in Scotland and the age of marriage was 16 years.
The Marriage Act of 1753 however fell short in that it only legally recognized marriages in Britain and Wales which were performed in a parish church by a clergyman in the Church of England. This meant that Roman Catholics and members of other ‘dissenting congregations’, as also atheists, Muslims, Hindus or members of any other religious body, had to be married according to the Anglican rites and ceremonies which they did not support.
The Counter-Reformation in 1563 decreed that a marriage would be recognized only if the marriage ceremony was solemnized by a priest with two witnesses. In the early modern period John Calvin with his Protestant colleagues reformulated Christian marriage by enacting the Marriage Ordinance of Geneva, which imposed “the dual requirements of state registration and church consecration to constitute marriage for recognition.[v]
Another Marriage Act of 1836 was promulgated to remedy a situation where Christians belonging to non-Anglican churches were concerned. Until this time, civil registration of marriages was an alternative to church marriage. It allowed ministers belonging to other churches to register marriages performed in their churches with the government, thus granting legal status to those marriages.[vi]
Besides stemming conduct considered to be immoral, the basis of registration of Marriages seemed pegged to a somewhat discriminative legislation. Civil registration of marriages was meant to be a cure to the illegality or legal lacuna created by an otherwise religiously discriminative legal regime.
The Ugandan Legislation
English law, which is the legal system of England and Wales, is the basis of common law which was exported to all British Colonies and thus the Commonwealth countries of which Uganda is. The Marriage Act Cap 251 which came into force on the 1st of April 1904 sought to entrench the British values into the protectorate.
Unlike the English law that had some religious discrimination, the Marriage Act of Uganda under s.20 recognized marriages celebrated in any licensed place of worship by any recognized minister of the church, denomination or body to which the place of worship belongs, and according to the rites or usages of marriages observed in that church, denomination or body. This thus made provision for other persons practicing other faiths other than the Anglican Christian faith. It is this provision that emboldens the requirement of having a licensed recognized place of worship and a recognized minister.
Subsequently, the enactment of the Marriage and Divorce of Mohammedans Act to cater for Moslems, Marriage o Africans Act, Hindu Marriage and Divorce Act for Hindus all have provisions for registration of the various marriages.
The Marriage Act created marriage districts superintended by registrar of marriages. Under s.23, Registrars, and recognized Ministers are to be provided with books of marriage certificates in duplicate and with counterfoils. Immediately after the celebration of any marriage by a minister, the officiating minister is required to fill out in duplicate a marriage certificate with the particulars required. The minister then signs the certificate in duplicate, sever the duplicate there from and deliver once certificate to the parties and within seven days thereafter transmit the other to the registrar of marriages for the district in which the marriage takes place, who shall file it in his or her office.
The Act makes it mandatory to register marriage certificates in the Marriage Register Book and copies certified to be true and correct copies are admissible as evidence of the existence of the marriage. Under s.46, failure to comply to with this obligation attracts a penal sanction after conviction to imprisonment for a period not exceeding two years.
It is important to note that failure to register the Marriage Certificate does not invalidate the marriage.
Under S.34 (2) the only grounds that would invalidate a marriage are knowingly and willfully acquiescing the celebration of the marriage (a) in any place other than the office of a registrar of marriages or a licensed place of worship, except where authorized by the Minister’s license; (b) under a false name or names; (c) without the registrar’s certificate of notice or Minister’s license duly issued; or (d) by a person not being a recognized minister of some religious denomination or body, or a registrar of marriages.
All marriages celebrated under the Marriages Act as provided by s.35 are good and valid to all intents and purposes.
Why register marriages?
From the onset, the foundation of registration of marriages was to really deal with curbing a moral vice within the society. It hoped to legitimize and give moral value to the contractual relations being entered into by the people; to provide redress to parties in the event of dissolution of the marriage.
The Indian Supreme Court’s directive dated 14.2.2006 as a result of the Seema vs. Ashwani Kumar case (2006 (2) SCC 578) set it as mandatory to register all marriages, irrespective of the religion, caste or creed.
Accordingly the following are various advantages of registering a marriage:
1. Succession of property to the surviving spouse becomes easy.
2. A second marriage can be solemnized in the event of the dissolution of the first marriage.
3. In case of legal separation, divorce, alimony, if the court needs to decide on the transfer of property or the custody of children, a certificate of marriage is required to be produced in the family court.
4. If one of the partners wants to work abroad and wants to take along his/her other half then a marriage certificate is required to obtain a work permit from the respective country’s consulate. Foreign consulates refuse to issue work permit without the marriage certificate in such cases.
5. Preventing men from abandoning their wives after marriage.
6. Ensuring a minimum legal age for marriage
7. Stopping the practice of child marriage.
8. Preventing the exploitation and trafficking of women by an Indian or a foreigner under the guise of marriage.
9. Facilitating women in claiming maintenance.
10. Facilitating women in exercising the right to live at her matrimonial residence.
11. Preventing bigamy and polygamy wherever it is considered illegal.
12. Facilitating widows in inheriting their husband’s property and other privileges in the event of the death of her husband.
13. Preventing the solemnization of marriage in case either or both parties are unwilling to enter into a marriage.[vii]
The various reasons espoused for registration lend credence to the pursuit by the Uganda Registration Services Bureau in ensuring that registration of marriages is effectively conducted.
[i] "Marriage, a History." Psychology Today, May 01, 2005
[ii] Witte Jr., John (1997). From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition. Westminster John Knox Press. pp. 39–40. ISBN 0-664-25543-4.
[iii] "St. Ignatius of Antioch to Polycarp (Roberts-Donaldson translation)". Earlychristianwritings.com. 2006-02-02. http://www.earlychristianwritings.com/text/ignatius-polycarp-longer.html. Retrieved 2010-08-27.
[iv] Witte Jr., John (1997), supra.
[v] Witte Jr., John (1997), supra.
[vi] http://en.wikipedia.org/wiki/Contract_of_marriage visited on 13/6/2012
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