Marriage, Divorce and Family Relations Act
- Assented to on 10 April 2015
- Commenced on 3 July 2015
- [This is the version of this document at 31 December 2017 and includes any amendments published up to 31 October 2021.]
- [Note: This version of the Act was revised and consolidated in the Fifth Revised Edition of the Laws of Malawi (L.R.O. 1/2018), by the Solicitor General and Secretary for Justice under the authority of the Revision of the Laws Act.]
Part I – Preliminary
1. Short titleThis Act may be cited as the Marriage, Divorce and Family Relations Act.
2. InterpretationIn 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; and(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. ApplicationThis 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
5. Publication of list of registrarsThe 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
7. Registration of marriagesEvery marriage celebrated in accordance with this Act shall be registered by a registrar.
8. Marriage Register Book
9. Correction of clerical errors in marriage certificates
10. Evidence of marriageThe following shall be admissible as evidence of a marriage to which it relates—
11. Minister to license places of worship to celebrate marriages
12. Marriages recognized under the Act
13. Marriage by repute or permanent cohabitationA 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—
Part III – Essential elements of marriage
14. Service committeesSubject 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 affinityA marriage celebrated between—
16. Explanations to be given by a registrarA 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.[First Schedule]
Part IV – Preliminaries to a civil marriage
17. Declaration of marital status prior to marriageA 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 marriageA person who contracts a civil marriage shall be married to one spouse only.
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 noticeEvery 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 publishedA registrar shall enter the notice under section 19 in the Marriage Notice Book.
23. Publication of a marriage noticeAfter 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 marriageA 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—
25. Power of Minister to grant special licence to marryThe 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.[First Schedule]
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 groupsSubject to sections 14 and 15, the procedures preceding the celebration of a religious or customary marriage shall be governed by the customs or rites which are usual among the ethnic group, religion or sect under which the marriage is celebrated.
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
31. Caveat to be referred to court
32. Compensation and costs for wrongful caveatA court may, upon application, award compensation and costs to an injured party if it appears that a caveat was entered based on insufficient caveat grounds.
Part VII – Celebration of civil marriage
33. Marriage in a registrar’s officeAfter the issue of a permit under section 24, or of a licence under section 25, the parties may contract a marriage before a registrar—
34. Oath to be administered in civil marriagesA registrar, after production to him or her of the permit or licence, shall administer the oath of marriage in Form F in the First Schedule.[First Schedule]
35. Marriage certificate to be signedImmediately after the celebration of a civil marriage, the Registrar shall—
36. Marriage under special licenceWhere a special licence authorizes the celebration of marriage at a place other than the office of a registrar, the registrar shall, upon the production of the licence, deliver to the person producing it a blank certificate of marriage in duplicate and shall comply with section 35.
Part VIII – Celebration of customary and religious marriages
37. Application of Part V to marriages under this PartA customary or religious marriage shall be celebrated accordance with the procedures and formalities under Part V.
38. Traditional Authority to register customary marriagesThe Minister shall deliver to every Traditional Authority Marriage Register Books in which each Traditional Authority shall record particulars of all customary marriages celebrated in his or her area of authority.
39. Marriage in a licenced place of worship
40. Oath to be administered in customary and religious marriagesA registrar celebrating a customary or religious marriage shall administer an oath, if any, as prescribed either by the religion or custom of one or both of the parties to the marriage.
41. Registrar not to celebrate marriage where there is impediment nor without permitA registrar shall not celebrate any marriage if he or she knows of any just impediment to such marriage, nor until the parties deliver to him or her a permit under section 28.
42. Customary or religious marriages under special licenceWhere a special licence authorizes the celebration of a customary or religious marriage other than at the office, place of worship or work of a registrar, the registrar shall, upon receipt of the licence, proceed to celebrate the marriage and complete the certificate of marriage in Form G in the First Schedule in duplicate after strictly observing all the formalities for customary and religious marriages prescribed under this Act.[First Schedule]
43. Register of customary or religious marriages certificate
44. Entries to be made in marriage certificateImmediately after the celebration of a customary or religious marriage, a registrar shall complete in duplicate a marriage certificate in Form G in the First Schedule, and also state 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.[First Schedule]
45. Signature to marriage certificateA registrar, the parties to a marriage, and two or more witnesses to the marriage shall sign the certificate of marriage in duplicate.
46. Duplicate certificate to be sent to the RegistrarIn addition to signing the certificate as required by section 45, a registrar celebrating a customary or religious marriage shall deliver the duplicate copy of the marriage certificate to the Registrar of Marriages.
47. Marriage certificate to be registeredThe Registrar of Marriages shall file the duplicate copy of the marriage certificate in the ivramage Register Book kept in his or her office.
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 marriageA person who contracts a civil marriage under Part VII and who subsequently is married or purports to be married, to more than one spouse, commits an offence, and is liable on conviction to a fine of K100,000 and imprisonment for five years.
52. Marriage ceremony with a married personAn unmarried person who goes through the ceremony of a civil marriage with a person whom he or she knows to be married to another person, commits an offence and is liable on conviction to a fine of K100,000 and imprisonment for twelve months.
53. Making false declarations in relation to marriageA person who makes or issues a false declaration, certificate, permit, licence, document or statement by law for the purpose of marriage commits an offence and is liable on conviction to a fine of K100,000 and to imprisonment for twelve months.
54. Registrar unlawfully performing ceremonyA registrar who performs the ceremony of marriage knowing that any of the matters required by law for the validity of a marriage have not been fulfilled, so that the marriage is void on any of those matters, commits an offence and is liable on conviction to a fine of K100,000 and to imprisonment for five years.
55. Unlawful performance of ceremony by person not legally competentA person who knowingly and willfully celebrates or purports to celebrate a marriage when he or she is not competent under this Act to do so commits an offence and is liable on conviction to a fine of K100,000 and to imprisonment for five years.
56. Willful neglect of duty to fill up or transmit certificate of marriageA person who is charged with the duty to complete the marriage certificate of a marriage celebrated by him or her, or its duplicate, or to deliver the certificate to the Registrar of Marriages, and who willfully fails to perform his or her duty, commits an offence and is liable on conviction to a fine of K100,000 and to imprisonment for five years.
57. Personation in marriageA person who—
58. Fictitious marriageA person who 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, commits an offence and is liable on conviction to a fine of K100,000 and to imprisonment for five years.
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 separationA husband commits the offence of rape during the subsistence of a decree for judicial separation if he has sexual intercourse with his wife without her consent.
63. Irretrievable breakdown of marriage
64. Evidence of breakdown of marriageIn deciding whether or not a marriage has irretrievably broken down, the court may accept any one or more of the following facts as evidence that the marriage has irretrievably broken down—
65. Circumstances in which decrees may be madeA court may upon application grant a decree nisi of divorce or a decree of judicial separation if—
66. Arrangements for the future in case of divorce or judicial separationThe court, in granting an order for decree nisi of divorce or an order for judicial separation, shall first be satisfied that the parties to the marriage have made arrangements for the future by producing one of the following—
67. Rebuttable presumption of condonation of adulteryThere is a rebuttable presumption that adultery has not been conone uness consumma on as een connue or susequeny resumed of the parties’ free will.
68. Co-respondentWhere the petition is presented on the ground that the respondent has since the celebration of the marriage committed adultery, the petitioner shall make the person with whom the respondent committed the alleged adultery a co-respondent to the petition unless the petitioner is excused by the court from so doing on one of the following grounds—
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 marriageA court shall equitably divide and re-allocate property upon the dissolution of a marriage taking into account—
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
79. Service of petition
80. Examination of witnesses
81. Husband and wife compellable witnessesOn any petition presented by a spouse for the dissolution of the marriage on the ground of adultery coupled with cruelty or desertion without reasonable excuse, the husband and wife respectively shall be competent and compellable to give evidence relating to such cruelty or desertion.
82. Sittings in cameraThe court may hear the whole or part of any proceedings under this Act behind closed doors.
83. AdjournmentThe court may adjourn the hearing of any petition under this Act, and may require further evidence.
84. Making decree nisi absolute
85. Enforcement of orders for payment of money
86. Re-marriage of the partiesIt is lawful for parties to a marriage which—
87. Rules of courtThe Chief Justice may make Rules regulating the procedure for petitions for divorce, judicial separation or nullity of marriage under this Act.
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. Court may vary or discharge ordersA court havingjurisdiction in the place in which any order under this Act has been made may vary or discharge the order—
99. Mode of maintenance paymentsA court may allow non-pecuniary payments amounting to the value of the sum ordered either at the request of either or both of the parties to the action or on its own motion where having regard to all the circumstances, the court considers the non-pecuniary payments to be appropriate.
100. Order for accommodation
101. Address to be provided to the court
102. Appeals against maintenance ordersFor avoidance of doubt, an appeal from an order for maintenance or the refusal of an order by a court shall lie, in the case of a court subordinate to the High Court, to the High Court and in the case of the High Court, to the Supreme Court of Appeal.
Part XVII – Extra-territorial enforcement of maintenance orders
103. Registration of a maintenance order made in a foreign country
104. Transmission of order made in MalawiWhere a court in Malawi has made a maintenance order against any person before or after the commencement of the Act, and it is proved to the court that the person against whom the order is made is resident in a foreign country, the court shall send a certified copy of the order to the appropriate authority in the foreign country.
105. Power to make order against a person resident in a foreign country
106. Chief Justice to make rules for facilitating communicationThe Chief Justice may make Rules as to the manner in which a case may be remitted to a court authorized to confirm a provisional order, and generally for facilitating communication between a court in Malawi and an appropriate authority in a foreign country.
107. Mode of enforcing orders
108. Proof of documents
109. Depositions to be evidenceA deposition taken in a court in a foreign country for the purposes of this Act may be received in evidence in proceedings before a court under this Act.
110. Powers of President to extend the application of this Act to other countriesWhere the President is satisfied that reciprocal provisions have been or are about to be made by the legislature oi any foreign country for the enforcement within that country or part of it of maintenance orders made by courts in Malawi, he or she may, by proclamation extend the Act to a foreign country or part of it, and this Act shall apply accordingly in respect of that country or part so that the references to foreign country in this Act were references to that country.
Part XVIII – Miscellaneous
111. Establishment of Family Counseling Panels
112. Conduct by third parties
113. Forms and feesThe Chief Justice may prescribe the forms to be used and the fees to be paid by a person applying for an order of maintenance under this Act.
114. Repeals and savings
History of this document
03 July 2015
10 April 2015