Marriage Act (Chapter 25:01)

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This is the latest version of this legislation commenced on 31 Dec 2014.

Malawi

Marriage Act

Chapter 25:01

  • Commenced on 1 February 1903

  • [Up to date as at 31 December 2014]
  • [Note: This version of the Act was revised and consolidated in the Fourth Revised Edition of the Laws of Malawi (L.R.O. 1/2015), by the Solicitor General and Secretary for Justice under the authority of the Revision of the Laws Act.]


An Act to make Provision for Marriages


1. Short title

This Act may be cited as the Marriage Act.

2. Interpretation

In this Act, unless the context otherwise requires—district” means a marriage district constituted under this Act;Registrar” means a Registrar of Marriages, and includes a Deputy Registrar.

3. Constitution of marriage districts

The Minister shall, by order published in the Gazette, divide Malawi into districts for the purposes of this Act and may, from time to time, by like order, alter the marriage districts either by alteration of boundaries or by union or subdivision of districts, or by the formation of new districts.

4. Appointment of Registrars and Deputy Registrars

(1)The Minister shall from time to time appoint a fit and proper person to be the Registrar for each district, and may also from time to time appoint a Deputy Registrar for any district.
(2)The Minister may revoke any appointment made under subsection (1).

5. Officers of Registrars

Every Registrar shall have an office at such place in his district as the Minister shall from time to time direct.

6. Places of worship to be licensed for celebration of marriages

The Minister may license any place of public worship to be a place for the celebration of marriages, and may at any time cancel such license; in either case he shall give notice thereof in the Gazette.

Preliminaries to marriage

7. Notice of marriage

Whenever, after the commencement of this Act, any persons desire to marry, one of the parties to the intended marriage shall sign and give to the Registrar of the district in which such party resides a notice in the Form A in the First Schedule.Should the party giving the said notice desire the marriage to be celebrated in a district other than that in which he resides he shall so inform the Registrar.

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

If the person giving such notice is unable to write or is insufficiently acquainted with the English language, or both, then it shall be sufficient if he places his mark or cross thereto in the presence of some literate person who shall attest the same, which attestation shall be in the Form B in the First Schedule.

9. Registrars to supply forms of notice

Every Registrar shall supply forms of notice gratuitously to any persons applying for the same.

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

Upon receipt of such notice the Registrar shall cause the same to be entered in a book to be called the “Marriage Notice Book”, which may be inspected during office hours without fee. He shall also publish such notice by causing a copy of the same to be affixed on the outer door of his office, and to be kept exposed there until he grants his certificate as hereinafter mentioned, or until three months shall have elapsed.If the marriage is intended to be celebrated in another district he shall forward a copy of the said notice to the Registrar of such other district who shall immediately on receipt thereof cause it to be affixed to the outer door of his office.

11. Registrar’s certificate

The Registrar of the district in which the person giving the said notice of marriage resides, at any time after the expiration of twenty-one days and before the expiration of three months from the date of the notice and upon payment of the prescribed fee, shall thereupon issue his certificate in the Form C in the First Schedule:Provided always that he shall not issue such certificate until he has been satisfied by affidavit—(a)that one of the parties has been resident within his district for at least fifteen days preceding the granting of the certificate; and(b)that eacbh of the parties to the intended marriage (not being a widower or widow) is 21 years old, or that if he or she is under that age, the consent hereinafter made requisite has been obtained in writing and is annexed to such affidavit; and(c)that there is not any impediment of kindred or affinity, or any other lawful hindrance to the marriage; and(d)that neither of the parties to the intended marriage is married by customary law to any person other than the person with whom such marriage is proposed to be contracted.Such affidavit may be sworn before the Registrar, or before a magistrate.Explanations to be givenThe Registrar or magistrate taking such affidavit shall explain to the person making the same what are the prohibited degrees of kindred and affinity and the penalties which may be incurred under this Act.

12. Facilities for marriages between Commonwealth citizens resident in Malawi and Commonwealth citizens resident in the United Kingdom

(1)Where a marriage is intended to be solemnized or contracted in Malawi between a Commonwealth citizen resident in Malawi and a Commonwealth citizen resident in the United Kingdom, a certificate for marriage issued by a Superintendent Registrar in England and a certificate for marriage issued by a Registrar, and a certificate of proclamation of banns in Scotland, and a certificate for marriage issued by a Registrar in Ireland shall have the same effect as a certificate for marriage issued under section 11.
(2)Where a marriage is intended to be solemnized or contracted in England, Scotland or Ireland between a Commonwealth citizen resident in England, Scotland or Ireland and a Commonwealth citizen resident in Malawi the Registrar may issue the certificate set forth in section 11 in the like manner as if the marriage was to be solemnized or contracted under circumstances requiring the issue of such a certificate, and as if both such Commonwealth citizens were resident in Malawi.

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

If the marriage shall not take place within three months after the date of the notice, the notice and all proceedings consequent thereupon shall be void, and fresh notice must be given before the parties can lawfully marry.

14. Power of Minister to grant licence to marry

The Minister, upon proof being made to him by affidavit that there is no lawful impediment to the proposed marriage, and that the necessary consent (if any) to such marriage has been obtained, may, in his discretion, dispense with the giving of notice, and with the issue of the certificate of the Registrar, and may grant a special licence, which shall be according to the Form D in the First Schedule authorizing the celebration of a marriage between the parties named in such licence by a Registrar, or by a recognized minister of some religious denomination or body.

15. Issue of certificate may be forbidden

Any person whose consent to a marriage is hereby required, or who may know of any just cause why the marriage should not take place, may enter a caveat against the issue of the Registrar’s certificate, by writing at any time before the issue thereof the word “Forbidden;”, opposite to the entry of the notice in the Marriage Notice Book, and appending thereto his name and place of abode, and the grounds upon or by reason of which he claims to forbid the issue of the certificate, and the Registrar shall not issue his certificate until such caveat shall be removed as hereinafter is provided.

16. Caveat to be referred to Court

Whenever a caveat is entered against the issue of a certificate, the Registrar shall refer the matter to the High Court, and that Court shall thereupon summon the parties to the intended marriage, and the person by whom the caveat is entered, and shall require, the person by whom the caveat is entered to show cause why the Registrar should not issue his certificate, and shall hear and determine the case in a summary way, and the decision of the High Court shall be final.

17. Removal of caveat

If the High Court decides that the certificate ought to be issued, the judge shall remove the caveat by cancelling the word “Forbidden” in the Marriage Notice Book in ink, and writing in such Marriage Notice Book, immediately below such entry and cancellation, the words “Cancelled by order of the High Court;”, and signing his name thereto. The Registrar shall then issue his certificate and the marriage may proceed as if the caveat had not been entered, but the time that has elapsed between the entering and the removal of the caveat shall not be computed in the period of three months specified in section 11.

18. Compensation and costs

The High Court may award compensation and costs to the party injured, if it appears that a caveat was entered on insufficient grounds.

Consent to marriage in certain cases necessary

19. Consent to marriage of minors

If either party to an intended marriage, not being a widower, widow or divorced person, is not over eighteen years of age, the written consent of the father or mother, or if both be dead or of unsound mind or absent from Malawi, of the guardian of such party, must be produced annexed to such affidavit as aforesaid, before a licence can be granted or a certificate issued.[29 of 1997]

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

(1)If the person required to sign such consent is unable to write, or is insufficiently acquainted with the English language, or both, then he shall sign such consent by placing his mark or cross thereto in the presence of one of the following persons—Any judge, District Commissioner, magistrate, Registrar of the High Court, Registrar, medical officer or minister of religion.
(2)Such signature shall be attested by such person in the Form B in the First Schedule.

21. Consent where no parent or guardian capable of consenting

If there be no parent or guardian of such party residing in Malawi and capable of consenting to the marriage, then any of the following persons may consent to such marriage in writing, upon being satisfied after due inquiry that the marriage is a proper one; that is to say, the Minister, a Judge of the High Court, a District Commissioner, and such consent shall be as effectual as if the father or mother had consented.

Celebration of marriage

22. Marriage in licensed place of worship by recognized minister

Between hours of 8 a.m. and 6 p.m.WitnessesMarriages may be celebrated in any licensed place of worship by any recognized minister of the Church denomination or body to which such place of worship belongs, and according to the rites or usages of marriage observed in such Church, denomination or body, provided that the marriage be celebrated with open doors between the hours of 8 o’clock in the forenoon and 6 o’clock in the afternoon, and in the presence of two or more witnesses besides the officiating minister.

23. Minister not to celebrate marriage if impediment nor without license, etc.

A minister shall not celebrate any marriage if he knows of any just impediment to such marriage, nor until the parties deliver to him the Registrar’s certificate or the Minister’s licence.

24. Where minister may celebrate marriage

A minister shall not celebrate any marriage except in a building which has been duly licensed by the Minister, or in such place as a special licence may direct.

25. Registrars, etc., to be provided with books of certificates

The Minister shall cause to be printed and delivered to the several Registrars, and to the recognized ministers of licensed places of worship, books of marriage certificates in duplicate and with counterfoils in the Form E in the First Schedule. Such books shall be kept by the several Registrars and the recognized ministers for the time being of such places of worship, under lock and key, and be in custody of such Registrars and ministers respectively.

26. Entries to be made in marriage certificate

Immediately after the celebration of any marriage by a minister, the officiating minister shall fill up in duplicate a marriage certificate with the particulars required by the said Form E, and state also and enter in the counterfoil the number of the certificate, the date of the marriage, names of the parties, and the names of the witnesses.

27. Signature of certificate

Duplicate certificate to be sent to RegistrarThe certificate shall then be signed in duplicate by the officiating minister, by the parties and by two or more witnesses to the marriage. The minister having also signed his name to the counterfoil, he shall sever the duplicate certificate therefrom, and he shall deliver one certificate to the parties, and shall within seven days thereafter transmit the other to the Registrar for the district in which the marriage takes place, who shall file the same in his office.

28. Marriage in a Registrar’s office

After the issue of a certificate under section 11 or 17, or of a licence under section 14, the parties may, if they think fit, contract a marriage before a Registrar, in the presence of two witnesses in his office, with open doors, between the hours of 10 o’clock in the forenoon and 4 o’clock in the afternoon, and in the following manner—Form to be observedThe Registrar, after production to him of the certificate or licence, shall, either directly or through an interpreter, address the parties thus—“Do I understand that you A B, and you C D, come here for the purpose of becoming man and wife?”If the parties answer in the affirmative, he shall proceed thus—“Know ye that by the public taking of each other as man and wife in my presence, and in the presence of the persons now here, and by the subsequent attestation thereof by signing your names to that effect you become legally married to each other, although no other rite of a civil or religious nature shall take place, and that this marriage cannot be dissolved during your lifetime, except by a valid judgment of divorce; and if either of you before the death of the other shall contract another marriage while this remains undissolved, you will be thereby guilty of bigamy, and liable to punishment for that offence.”Each of the parties shall then say to the other, “I call upon all persons here present to witness that I, A B, do take thee, C D, to be my lawful wife (or husband)”.

29. Marriage certificate to be signed

The Registrar shall then fill up, and he and the parties and witnesses shall sign the certificate of the marriage in duplicate, and the Registrar shall then fill up and sign the counterfoil as hereinbefore prescribed in the case of a marriage by a minister, and shall deliver one certificate to the parties and shall file the other in his office.

30. Marriage under special licence

Whenever a special licence authorizes the celebration of marriage at a place other than a licensed place of worship, or the office of a Registrar, the Registrar of the district in which such marriage is intended to take place, upon the production of such licence, shall deliver to the person producing the same, a blank certificate of marriage in duplicate, and the minister or Registrar celebrating such marriage shall fill up such certificate, and observe strictly all the formalities hereinbefore prescribed as to marriages in a licensed place of worship, or Registrar’s office, as the case may be.

Registry and evidence of marriages

31. Marriage certificate to be registered

(1)The Registrar in each district shall forthwith register in a book to be kept in his office for such purpose, and to be called “The Marriage Register Book”, every certificate of marriage, which shall be filed in his office, according to the Form F in the First Schedule; and every such entry shall be made in the order of date from the beginning to the end of the book, and every entry so made shall be dated on the day on which it is so entered, and shall be signed by the Registrar, and such book shall be indexed in such manner as is best suited for easy reference thereto.
(2)The Registrar shall at all reasonable times allow searches to be made in the Marriage Register Book, and shall give certified copies therefom upon payment of the prescribed fee.
(3)Within ten days after the last day of each month, every Registrar shall send to the Registrar General a certified copy of all entries made by him during the preceding month in the Marriage Register Book in his district, and the Registrar General shall file the same in his office.

32. Correction of clerical errors in marriage certificates

Any Registrar, when authorized by the Registrar General, may correct any clerical error in any certificate of marriage filed in his office, upon production to him of the certificate delivered to the parties, and shall authenticate every such correction by his signature and the date of such correction.

33. Evidence of marriage

Every certificate of marriage which shall have been filed in the office of the Registrar of any district, or a copy thereof purporting to be signed and certified as a true copy by the Registrar of such district for the time being, and every entry in a Marriage Register Book or copy thereof certified as aforesaid, shall be admissible as evidence of the marriage to which it relates, in any Court of Justice or before any person now or hereafter having by law or consent of parties authority to hear, receive, and examine evidence.

Invalid marriages

34. Marriage with deceased wife’s sister or niece lawful

(1)A marriage may be lawfully celebrated under this Act between a man and the sister or niece of his deceased wife, but, save as aforesaid, no marriage in Malawi shall be valid, which, if celebrated in England, would be null and void on the ground of kindred or affinity, or where either of the parties thereto at the time of the celebration of such marriage is married by customary law to any person other than the person with whom such marriage is had.
(2)Certain marriages null and voidA marriage shall be null and void if both parties knowingly and wilfully acquiesce in its celebration (a) in any place other than the office of a Registrar or a licensed place of worship (except where authorized by a special licence); or (b) under a false name or names; or (c) without the Registrar’s certificate of notice or a special licence duly issued; or (d) by a person not being a recognized minister of some religious denomination or body, or a Registrar of Marriages.
(3)But no marriage shall after celebration, be deemed invalid by reason that any provision of this Act other than the foregoing has not been complied with.

35. Marriages under this Act valid

All marriages celebrated under this Act shall be good and valid in law to all intents and purposes.

36. Marriages under customary law

Any person who is married under this Act, or whose marriage is declared by this Act to be valid, shall be incapable, during the continuance of such marriage, of contracting a valid marriage under any customary law, but save as aforesaid, nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any customary law, or in any manner apply to marriages so contracted.

Marriages already celebrated

37. Certain existing marriages validated

Every marriage celebrated in Malawi before the commencement of this Act by any minister of any religious denomination or body, according to the rites in use by such religious denomination or body, shall be, and shall be deemed to have been from the time of the celebration thereof, a legal and valid marriage:Provided that nothing herein contained shall legalize any marriage which has before the commencement of this Act been declared invalid by any competent Court, nor any marriage, either party to which had at the time of its celebration a lawful wife or husband living, nor any marriage which was void by reason of kindred or affinity, or fraud, or incapacity to contract marriage; nor any marriage otherwise invalid, either party to which shall before the commencement of this Act, and in the lifetime of the other party thereto, have intermarried with any other person.

38. Existing registers of marriages to be transmitted to Registrar General

Every minister of religion or other person in Malawi who has in his custody or control any register, record, or paper purporting to be such, of marriages heretofore celebrated in Malawi shall deliver or transmit to the Registrar General the said register or official record, or a copy thereof, omitting, if desired, any matter of a private nature, with a certificate appended thereto in the following form—“I, A B, of [here describe place of abode and position], do certify that the annexed written pages contain the true record (excepting matters of a confidential nature) of the marriages heretofore celebrated in [here name church].Dated the ____________ day of ______________ 20 ____________[Signed “A B”.)”

39. Certain expenses to be defrayed from moneys provided by Parliament

The Minister may defray out of moneys provided by Parliament all proper expenses connected with the transmission or delivery of the said registers, or which may otherwise become necessary to be incurred in carrying out this Act.

Fees

40. Fees

(1)The fees specified in the Second Schedule shall be paid to Registrars for the several matters to which they are applicable, and shall be paid by them into the Consolidated Fund.[17 of 1997]
(2)The Minister may, by Order published in the Gazette, amend the Second Schedule.

41. Power to remit fees on ground of poverty

The Minister may, when he is satisfied of the poverty of the parties, reduce the amount of the said fees, or remit them altogether; and, if they have been paid into the Consolidated Fund, order their refund.

42. Marriage may receive customary fees

This Act shall not preclude a minister from receiving the fees ordinarily paid to a minister of his denomination for the celebration of marriage.

Offences and penalties

43. Bigamy

Whoever is guilty of bigamy shall be liable to imprisonment for five years.

44. Marriage with person previously married

Whoever, being unmarried, goes through the ceremony of marriage with a person whom he or she knows to be married to another person, shall be liable to imprisonment for five years.

45. Making false declarations, etc., for marriage

Whoever in any declaration, certificate, licence, document, or statement by law to be made or issued for the purposes of a marriage, declares, enters, certifies, or states any material matter which is false, shall, if he does so without having taken reasonable means to ascertain the truth or falsity of such matter, be liable to imprisonment for one year, or shall, if he does so knowing that such matter is false, be liable to imprisonment for five years.

46. False presence of impediment to marriage

Whoever endeavours to prevent a marriage by pretence that his consent thereto is required by law, or that any person whose consent is so required does not consent, or that there is any legal impediment to the performing of such marriage, shall, if he does so knowing that such pretence is false or without having reason to believe that it is true, be liable to imprisonment for two years.

47. Registrar unlawfully performing ceremony

Any Registrar who performs the ceremony of marriage knowing that any of the matters required by law for the validity of such marriage has not happened or been performed, so that the marriage is void or unlawful on any grounds shall be liable upon conviction thereof before the High Court to a fine of K200 and to imprisonment for five years.

48. Minister unlawfully performing ceremony

Any minister who—(a)celebrates a marriage without the certificate of the Registrar or a special licence or elsewhere than in a licensed place of public worship or the place named in the licence; or(b)wilfully celebrates a marriage contrary to any provision hereof or knowing that any provision of this Act has not been complied with,shall be liable upon conviction thereof before the High Court to a fine of K200 and to imprisonment for five years.

49. Unlawful performance of ceremony by person not legally competent

Any person who shall knowingly and wilfully celebrate or pretend to celebrate any marriage not being legally competent so to do, shall, upon conviction thereof before the High Court, be liable to a fine of K200 and to imprisonment for five years.

50. Wilful neglect of duty to fill up or transmit certificate of marriage

Whoever, being under a duty to fill up the certificate of a marriage celebrated by him, or the counterfoil thereof, or to transmit the same to the Registrar, wilfully fails to perform such duty, shall be liable to imprisonment for two years.

51. Personation in marriage

Whoever personates any other person in marriage, or marries under a false name or description, with intent to deceive the other party to the marriage, shall be liable to imprisonment for five years.

52. Fictitious marriage

Whoever goes through the ceremony of marriage, or any ceremony which he or she represents to be a ceremony of marriage, knowing that the marriage is void on any ground, and that the other person believes it to be valid, shall be liable to imprisonment for five years.

53. Contracting marriage under this Act when already married by customary law

Whoever contracts a marriage under this Act, or any modification or re-enactment thereof, being at the time married in accordance with customary law to any person other than the person with whom such marriage is contracted, shall be liable to imprisonment for five years.

54. Contracting marriage by customary law when already married under this Act

Whoever, having contracted marriage under this Act, or any modification or re-enactment thereof, during the continuance of such marriage contracts a marriage in accordance with customary law, shall be liable to imprisonment for five years.

55. Reservation of jurisdiction

Jurisdiction under this Act shall be reserved to the High Court.

Forms

56. Forms in Schedule may be used

(1)The forms contained in the First Schedule may be used in the cases to which they are applicable, with such alterations as may be necessary.
(2)Validation of certain marriagesIn order to remove all doubts as to the validity of marriages celebrated under the Marriage Act by assistant district commissioners, all such marriages are hereby declared to be as from their celebration as valid as if in the case of each such marriage the assistant district commissioner was a Registrar of Marriages and empowered to issue the certificate required in connexion with the marriage by the Marriage Act and to celebrate the marriage, and as if his office was a place in which the marriage could legally be celebrated.[Cap 25:01]
(3)Evidence of such marriagesThe certificates of the marriages referred to in section 2 and entries relating to the same in any marriage register book or copies of such certificates or entries shall be received in all courts as evidence of such marriages in the same manner as similar certificates, entries, or copies in the case of marriages duly celebrated under the Marriage Act are by law receivable in evidence.[Cap 25:01]


First Schedule

Form ANotice of marriageTo the Registrar of Marriages for the __________________________________District of Malawi.I HEREBY give you notice that a marriage is intended to be had within three months from the date hereof between me, the undersigned, and the other party herein named at_____________________________.

Name Condition Occupation, Rank, or Profession Age Dwelling or Place of Abode Consent, if any, and by whom given
Bridegroom Bachelor or Widow Farmer, etc. (as case may be) 23 Zomba _
Bride Spinster or Widower Laundress, etc. (as case may be) 18 Blantyre Father

Witness my hand this_____________ day of_____________ , 19__________________________Signature

Form B (Sections 8 and 20)Form of attestationSigned by the said___________________, at________________________________________________, on the_________________ day of _________________ , 19_________________, this notice having been first read over to him [her] [or, read over and truly interpreted to him her in the language] by_________________ He [she] seemed to understand the same and made his [her] mark thereto in my presence._________________SignedForm C (Section 11)Registrar's certificateI, _________________ Registrar of Marriages in the_________________District in Malawi, do hereby certify that on the_________________ day of_________________, notice was duly entered in the Marriage Notice Book of this district of the marriage intended between the parties herein named and described, such notice being delivered under the hand of_________________ one of the parties, that is to say—
Name Condition Occupation, Rank, or Profession Age Consent Dwelling Length of residence
A.B. Bachelor Cultivator (as case may be) 19 (as case may be) E.F, the father (as case may be) Blantyre (as case may be)  
C.D. Spinster Laundress (as case may be) 16 (as case may be) G.H., the mother (as case may be) Zomba (as case may be)  

Date of notice entered_________________day of_________________19_________________Place of intended marriage as set out in the Notice of Marriage.Date of certificate given,_________________ day of_________________, 19_________________No caveat has been entered against the issue of this certificate: orA caveat was entered against the issue of this certificate on the_________________day of_________________,19_________________, but it has been cancelled.Witness my hand, this day of_________________, 19_____________________________________________________________________Signed, A.B.Registrar of Marriages_________________ DistrictNOTE—This certificate will be void unless the marriage is solemnized on or before the_________________day of_________________, 19_________________A.B.

Form D (Section 14)Special licenceWhereas A.B. and C.D. desire to intermarry, and sufficient cause has been shown to me why the preliminaries required by the Marriage Act should be dispensed with:Now, therefore, in pursuance of the said Act, I do dispense with the giving of notice and the issue of the certificate thereby prescribed, and do hereby authorize any Registrar of Marriages, or recognized Minister of some religious denomination or body to celebrate marriage between the said A.B. and C.D. at [place of celebration}, within_________________days from the date hereof.Such marriage may be celebrated by a Registrar of Marriages between the hours of 10 o’clock in the forenoon and 4 o’clock in the afternoon, or by such recognized Minister between the hours of 8 o’clock in the forenoon and 6 o’clock in the afternoon.Given under my hand this_________________ day of_________________, 19_________________Signed_________________, MinisterForm E (Sections 25 and 26)Form F (Section 31)
When married Names and surnames Whether full age or minor condition Occupation Residence Father’s name and occupation
             

Entered this_____ day of______,20 at the DistrictRegistry of Marriages at__________________________________Signed A.B., Registrar

Second Schedule


  K t
Filing every notice and entering the same 250 00
Issuing each certificate or certified copy thereof or any certified copy of any extract therefrom 250 00
On each marriage in the Registrar’s office 250 00
On issuance of a special licence 1,000 00

[5 of 1976][17 of 1997][G.N. 28/2005]