Marriage, Divorce and Family Relations Act

This section gives the Act’s short title: the Marriage, Divorce and Family Relations Act.

This section defines key terms used in the Act.

This Act applies to marriages entered into on or after the date it comes into operation, and Part IX applies to all marriages regardless of when they were celebrated.

This section creates the Office of the Registrar of Marriages, says the Registrar General’s current officer is the Registrar of Marriages, and requires listed offices to perform registrar functions under that office’s direction.

The Minister must publish, by order in the Gazette, a list of registrars of marriages under the Act.

The Registrar of Marriages must deliver marriage register books to the several registrars, and the registrars must keep custody of the books given to them.

A registrar must register every marriage celebrated under this Act.

Registrars must record marriage certificate details in the Marriage Register Book, keep entries orderly and indexed, allow inspection, issue certified copies on payment of the prescribed fee, and send monthly certified copies to the Registrar of marriages.

A registrar may correct clerical errors in a marriage certificate if the certificate is produced to the office, and must authenticate any correction with a signature, official stamp, and the correction date.

A marriage may be proved by specified documents, including a marriage certificate or entries and certified copies from the Marriage Register Book.

The Minister may license a place of worship for marriages, revoke that licence, and must notify the Gazette and the person in charge.

This section says which marriages are recognized under the Act and that they all have the same legal status.

A court may recognize a marriage by repute or permanent cohabitation only after making a finding and considering listed factors.

Two adults of opposite sex who are of sound mind may marry each other, subject to section 22 of the Constitution.

A marriage within the listed prohibited degrees of kindred or affinity is not valid.

A registrar must explain certain marriage-related legal matters to parties intending to marry and get them to sign a prescribed acknowledgement form.

Before marrying under this Part, a person must make a declaration before a registrar proving that he or she is single.

A person who enters a civil marriage must have only one spouse.

A person intending to marry must give the registrar a Form B notice, and if the marriage is to take place in another district, the person must tell the registrar; the original district registrar must then send a copy to the other district registrar, who must post the notice publicly.

If a notice giver cannot write or understand English, a mark or cross may be used in front of an English-literate person, who must attest it.

Every registrar must supply forms of the section 19 notice free of charge to anyone who applies.

A registrar must enter the notice under section 19 in the Marriage Notice Book.

The registrar must publish a marriage notice by posting a copy on the outer door of the registrar’s office, place of worship, or work.

A registrar must issue a civil marriage permit in Form D after 21 days and within 3 months of the notice, if the stated conditions are met.

The Minister may, if satisfied by affidavit that there is no lawful impediment to a proposed marriage, waive notice and the registrar’s permit and grant a special marriage licence.

Before a religious or customary marriage is celebrated, the procedures must follow the customs or rites usual for the relevant ethnic group, religion, or sect, subject to sections 14 and 15.

A person intending to marry under this Part must give written notice to a registrar in Form B. The registrar must enter the notice in the Marriage Notice Book, and the notice must be displayed for 21 days at the registrar’s office.

The registrar must issue a marriage permit in Form D after the 21-day period in section 27 ends, if the stated conditions are met.

A marriage must take place within three months after the notice date, unless section 31(5) applies.

A person who knows of a just cause against a marriage may enter a caveat before the permit is issued, and the registrar must not issue the permit until the caveat is removed under sections 31 and 32.

If a caveat is lodged, the registrar must refer it to court, and the court must hear the parties and decide the matter quickly.

A court may award compensation and costs to an injured party if a caveat was entered on insufficient grounds, and only upon application.

The parties may contract a marriage before a registrar if the permit or licence requirement is met, during the stated hours, with open doors, in the section 34 manner, and with two or more witnesses.

A registrar must administer the marriage oath in Form F once the permit or licence is produced.

After a civil marriage, the Registrar must complete the marriage certificate, record required details in the counterfoil, give one copy to the parties, and keep the other copy in the office.

If a special licence authorizes marriage at a place other than a registrar’s office, the registrar must give the person producing it a blank marriage certificate in duplicate and comply with section 35.

Customary or religious marriages under this Part must follow the procedures and formalities in Part V.

The Minister must provide Marriage Register Books to every Traditional Authority, and each Traditional Authority must record details of customary marriages in its area.

A religious marriage may be celebrated in a licensed place of worship, or in another place specially licensed by the Minister, and the ceremony must meet the stated formalities.

A registrar conducting a customary or religious marriage must administer any oath required by the parties’ religion or custom.

The registrar must not celebrate a marriage if aware of any just impediment, and must wait until the parties deliver the section 28 permit.

If a special licence allows a customary or religious marriage outside a registrar’s office, place of worship, or work place, the registrar must celebrate the marriage and complete the marriage certificate in duplicate.

A registrar who celebrates a customary or religious marriage must keep the register, sign each marriage entry in the Marriage Register Book, and send the Registrar of marriages a yearly copy of the register after 31 December as soon as possible.

After a customary or religious marriage, the registrar must complete a marriage certificate in duplicate and record required details in the counterfoil.

The registrar, the marriage parties, and at least two witnesses must sign the marriage certificate in duplicate.

A registrar for a customary or religious marriage must send the duplicate marriage certificate to the Registrar of Marriages.

The Registrar of Marriages must file the duplicate marriage certificate in the Register Book kept in the office.

This section gives spouses and wives rights about consortium, names, nationality, child care, custody, and limited refusal of consummation on reasonable grounds.

A spouse has a right to mutual trust and confidences during marriage and after divorce, and may disclose information in limited justice-related or divorce-related situations.

Both spouses must maintain each other and any children of the marriage, subject to how contributions are assessed.

A person who enters a civil marriage under Part VII commits an offence if they later marry or claim to marry more than one spouse.

An unmarried person who knowingly goes through a civil marriage ceremony with someone already married commits an offence.

Making a false declaration, certificate, permit, licence, document, or statement for marriage is an offence.

A registrar who knowingly performs a marriage ceremony when required legal conditions for validity have not been met commits an offence.

A person who knowingly and willfully performs or pretends to perform a marriage ceremony without being competent under the Act commits an offence.

A person charged with completing or delivering a marriage certificate must do so; willful failure is an offence punishable by a fine of K100,000 and five years’ imprisonment on conviction.

A person commits an offence if they impersonate someone in entering marriage, or marry under a false name or description to deceive the other party.

A person commits an offence if they go through a marriage ceremony knowing the marriage is void and the other person believes it is valid.

When a court exercises a function under this Part, it must have regard to listed general principles about protecting marriage, trying to save broken-down marriages, reducing distress and costs, and reducing violence risk.

This Act does not authorize divorce or nullity decrees unless the stated domicile or marriage-location conditions are met.

The court may grant judicial separation or divorce if it is satisfied the marriage has irretrievably broken down.

A husband commits an offence if, during judicial separation, he has sexual intercourse with his wife without her consent.

Either party to a marriage may file for divorce on the sole ground that the marriage has irretrievably broken down.

The court may treat certain facts as evidence that a marriage has irretrievably broken down.

A court may grant a decree nisi of divorce or judicial separation on application if the marriage has irretrievably broken down, the parties have had marriage counseling, and section 66 is satisfied.

Before granting a decree nisi of divorce or a judicial separation order, the court must first be satisfied that the spouses have made arrangements for the future.

There is a rebuttable presumption that adultery has not been condoned unless the source text condition is met.

If a petition alleges adultery, the petitioner must join the alleged adulterer as a co-respondent unless the court excuses that requirement.

When a divorce petition is filed, the court must examine the allegations, may grant a decree nisi if satisfied, and must dismiss the petition if not satisfied.

A married person may ask the court to presume the other spouse is dead and dissolve the marriage if there are reasonable grounds for that belief.

During judicial separation, each spouse’s individually acquired property is treated as separate, and the court may make orders about matrimonial property, alienation, and payments.

A spouse subject to a judicial separation decree may ask the court to reverse it if the decree was made in their absence and there was a reasonable excuse for the conduct relied on for separation.

A person may petition for divorce even after judicial separation, and the court may still grant a decree nisi.

A court must equitably divide and re-allocate property when a marriage is dissolved.

If a judicial separation or protection order is reversed, discharged, or varied, people’s existing rights and remedies for acts or contracts made in the interim are not affected; people who relied on the order when paying, transferring, or allowing an act are protected and indemnified unless they knew of the change.

A co-respondent may be ordered to pay all or part of the proceedings costs if adultery with the petitioner’s spouse is proved, but not if the co-respondent had no reason to think the respondent was married or if the respondent was living apart from their spouse at the time.

This section lists the grounds on which a court may make a decree of nullity of marriage.

A petition must state the facts of the claim clearly, be verified like a summons, and certain family-law petitions must also say there was no condonation, connivance, or collusion.

The court may direct how a petition is served, and may dispense with service if necessary or expedient.

Witnesses in proceedings must be examined orally, unless a party proves the case by affidavit.

In a spouse’s divorce petition based on adultery plus cruelty or desertion without reasonable excuse, the husband and wife can be called to give evidence about the cruelty or desertion.

The court may hear all or part of proceedings under this Act behind closed doors.

The court may adjourn a petition hearing and may require more evidence.

A decree nisi cannot be made absolute until at least six weeks have passed, unless the Chief Justice prescribes a longer period.

A court can enforce unpaid money orders by warrant, distress, detention, or payroll deduction, and an employer who ignores a court order can be fined.

Parties to a marriage may remarry if the earlier marriage was dissolved by nullity or annulled/dissolved after appeal, subject to the stated appeal timing.

The Chief Justice may make rules about the procedure for divorce, judicial separation, or nullity-of-marriage petitions under this Act.

Certain family members may apply to court for maintenance for necessities like shelter, food, and education, and the court must consider listed factors before granting an order.

A married person may apply to court for a maintenance order if the spouse is convicted of certain offences, deserts the person, is persistently cruel, fails to provide reasonable maintenance, or is a habitual drunkard. The court must issue summons to the respondent when it receives the application.

If a spouse neglects maintenance or children’s needs badly enough to harm health, safety, security, nutrition, or education, the neglect is notifiable family misconduct and must be reported to the Minister responsible for social welfare by persons named in section 88(3).

A spouse may apply to court for maintenance pending the suit, even if they already have a protection order.

The court may order maintenance after a divorce decree absolute or judicial separation, including lump-sum or periodic payments and related trust arrangements.

A court may discharge, modify, suspend, or revive a maintenance order in certain circumstances.

After a divorce or nullity decree, a court may look into ante-nuptial or post-nuptial settlements and make orders about the settled property, but it cannot do so for the parties’ benefit at the children’s expense.

In divorce or judicial separation proceedings, the court must consider the children’s welfare and may delay the decree absolute in some child-related cases.

If a woman is pregnant and the alleged father accepts or is found responsible, he must maintain her and cover delivery costs; the court may enforce this on the woman’s application.

The court may make property settlement, maintenance, or child custody orders even if the marriage was declared void.

A court with jurisdiction where an order under the Act was made may vary or discharge that order.

A court may allow non-pecuniary payments equal to the ordered sum if requested by one or both parties, or on its own motion, when appropriate in all the circumstances.

A court may, in some maintenance-related cases after judicial separation, order that the applicant not be evicted from the matrimonial home, or order the respondent to provide suitable accommodation.

A person ordered to pay maintenance must give the court clerk full written address details and report any change of address.

Appeals from maintenance orders, or refusals to make them, go to the High Court if made by a lower court, and to the Supreme Court of Appeal if made by the High Court.

If a foreign court makes a maintenance order and a certified copy is sent to the Registrar of the High Court, the Registrar must send a copy for registration in Malawi.

If a Malawi court has made a maintenance order and the person is shown to live in a foreign country, the court must send a certified copy to the appropriate foreign authority.

A Malawi court may make a maintenance order in a person’s absence if the person is in a foreign country and the court is satisfied the application is proper.

The Chief Justice may make rules about sending cases to a court that can confirm a provisional order and about communication between a Malawi court and a foreign authority.

Courts that register or confirm an order must take the prescribed steps to enforce it.

A foreign court document signed by a judge or court officer is treated as properly signed unless someone proves otherwise.

A court under this Act may receive as evidence a deposition taken in a foreign court for the purposes of this Act.

The President may, by proclamation, extend the Act to a foreign country or part of it if satisfied that reciprocal provisions are being made there for enforcing Malawi maintenance orders.

The Minister may establish Family Counseling Panels and make rules for them; panels may intervene in neglect or abuse cases, and courts must ask whether a case was referred to a panel.

A person who uses influence as a close relation to a spouse and causes harm to a marriage commits an offence and can be fined K100,000 or imprisoned for 12 months.

The Chief Justice may set the forms and fees for maintenance-order applications under this Act.

This section repeals several earlier marriage-related Acts and preserves certain things done under them if they were still in force at commencement.