April 29, 2003

Assembly debates radical changes to family law

The Mozambican parliament, the Assembly of the Republic, on Tuesday, April 29, began debating a bill that proposes sweeping changes in the country's family legislation, in favour of women's and children's rights.

Family law is dealt with in the Civil Code, a document that dates from 1966, when Mozambique was still under Portuguese colonial rule, and regarded as a Portuguese "overseas province". It is thus full of anachronisms, recognises the Catholic church but no other religion, and is deeply hostile to women. Under the Civil Code, the head of the family is automatically a man, women are subject to the "marital power" of their husbands, women require their husband's consent before taking any paid job, and all the property of the household is administered by the husband.

Nobody has paid much attention to these rules for the past quarter of a century, since they openly violate the clause in the Mozambican constitution enshrining equality between the sexes. Mozambican jurists sat down to write a new family law in the late 1970s - but this was one of many projects shelved as the war of destabilisation worsened and the country plunged into economic crisis. Work on the Family Law resumed in the 1990s, and a draft was widely discussed in heated meetings around the country.

In the document now before the Assembly everything hinting at male supremacy in the Civil Code has been excised. So has all distinction between children born in and out of wedlock. The husband will no longer automatically represent the family. Either partner may do so. The right of husband or wife to work may not be restricted by the other partner. The couple are expected to live in the same house - but not necessarily the husband's house.

Up until now, the only form of marriage recognised legally has been civil marriage. The bill acknowledges that only a tiny minority of Mozambicans go through the red tape and expense involved in marrying at a registry office. It proposes to extend legal recognition to religious marriages, and to those traditional marriages that are accepted by community leaders. But it rejects the use of religion as a cloak for premature marriages, arranged marriages or polygamy.

The bill does not outlaw polygamous marriages - but the Ministry of Justice document explaining the bill declares that "bearing in mind the principles of equality and non- discrimination, polygamy should not be encouraged". Traditional polygamous marriage, it points out, where there is a hierarchy between the various wives, is "an attack upon the dignity of women". The bill opts only to recognise polygamous unions at the moment of the man's death - in order to safeguard the inheritance rights of all his wives and children. The government warns against the legal recognition of polygamy because "women constitute more than 50 per cent of the active population of the country, and the law must not be used to denigrate the majority of the population and block their access to development". Enshrining polygamy in law would also mean discriminating against women in rural areas, where polygamy is more common than in the towns: it would be equivalent to saying that only urban women "can aspire to modernity".

The existing law puts the minimum age of marriage for boys at 16 and for girls at just 14. The bill eliminates what is no more that a form of child abuse, and sets the age of marriage at 18 for both sexes (though allowing marriage for girls "under special circumstances" at 16, with their parents' consent). The government says that this clause, attacking premature marriages, is designed to protect "women's rights to education, to reproductive and to mental health, as well as the right to play, and to grow up at the right pace". A further radical change is the recognition of "de facto unions" - i.e. couples living together in a stable relationship, but who have not bothered to get married at all. In Mozambican cities this is the most common form of union. Any couple who have been living together for at least a year will be regarded as a "de facto union", and the children of this union will have the same protection and recognition as children of any form of marriage. If such a union breaks up, the man will no longer be able to shrug off responsibility for his children, and may find himself obliged to pay maintenance to his ex- partner.

The bill makes adoption easier. Previously the law stipulated that only couples who had been married for at least 10 years and who were at least 35 years old could adopt a child. If this bill is passed any couple who are aged over 25, and have been living together for over three years, can adopt. Furthermore single people may adopt, provided they can provide "moral and material conditions that guarantee the healthy growth of the child". However, nobody over the age of 40 may adopt, unless the child concerned is the son or daughter of a deceased or separated partner.

The bill recognises, for the first time in Mozambican law, the concept of foster family. It became very common during the war of destabilisation for orphaned or abandoned children to be taken into foster families. The practice is bound to continue because of the large number of children whose biological parents are dying of AIDS. The parliamentary debate showed that this is one of the few issues where the government is to the left of the Frelimo parliamentary group. While every speech broadly welcomed the bill, they usually contained reservations.

Thus even someone as prominent as Frelimo Political Committee member Veronica Macamo, first deputy chairperson of the Assembly, found startling the proposal that the head of the family should not necessarily be the husband. She noted hat "the exercise of marital power" by the husband was deeply rooted in Mozambican culture. "Has the time come to change this social practice in the name of equality ?", she asked. "How do we resolve cases where there is no consensus as to who should be head of the family ?". Sergio Vieira, usually an outspoken representative of the Frelimo left, took up some conservative positions. He queried the legal recognition of "de facto unions", suggesting that this would just encourage men not to get married. The practice of "lobolo" (bride-price) is often regarded as mercenary - but Vieira declared that it was a form of "pre-nuptial" contract, which should be included in the law. (AIM, Maputo)

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