Jessica SternMarriage, Divorce and Family Relations Law creates new forms of discrimination

The International Gay and Lesbian Human Rights Commission (IGLHRC) has raised serious concerns about discriminatory provisions in a law signed by Malawi’s President Mutharika that is expected to go into effect. The Marriage, Divorce and Family Relations Law creates new forms of legal discrimination against lesbian, gay, bisexual, transgender and intersex individuals.  While the law raises the minimum marriage age to 18—a positive move to combat child marriage—it also promotes a policy of exclusion against LGBTI Malawians that would likely translate into discrimination in education, housing, jobs and elsewhere.

IGLHRC is urging the Malawi government to strip the Marriage, Divorce and Family Relations bill of its discriminatory provisions. The law is expected to go into effect, having been signed by the president before he travelled to the United States for meetings.

“It’s appalling that a law that attempts to address a serious human rights abuse like child and forced marriage would then also target Malawians for discrimination based on sexual orientation or gender identity,” said Jessica Stern, executive director, at IGLHRC. “It’s unacceptable to try to prevent one existing wrong and in the process create another abuse in the form of legal discrimination against LGBTI individuals.”

The law denies equal rights to form a family to transgender, intersex and other individuals whose identity does not align with that assigned at birth, and ignores the reality of any co-living arrangement not in the form of opposite-sex couples—including non-romantic relationships.

The law:

  • defines sex or gender as the sex assigned to a person at birth, denying equal rights to form a family to transgender, intersex and other individuals whose gender identity does not align that that assigned at birth;
  • defines marriages, unions, cohabitation or “customary” marriages as being between a man and a woman, ignoring the reality of same-sex relationships—and non-romantic supportive unions—and codifying the state’s rejection of all same-sex relationships, whether married or not;
  • validates the criminalization of so-called “unnatural offenses” (a term often used to criminalize same-sex consensual relations between adults) by including a conviction on this offense as acceptable evidence of a marriage breakdown;
  • equates rape and “unnatural offenses” as similar grounds for marriage breakdown, thus perpetuating the wrongful idea that consensual same-sex relations either do not exist or are as damaging as sexual assault.

The United Nations in Malawi has praised the bill for requiring 18 as a minimum age for marriage in a country that ranks 8th globally for high rates of child marriage, but has failed to publicly raise concern over its discriminatory provisions.

“It is stunning that the United Nations so far has been unwilling to state unequivocally that it rejects the discriminatory aspects of this law. It’s especially distressing because these discriminatory provisions discredit a bill that otherwise would provide much needed protection for girls—including gender non-conforming girls—from early and forced marriages,” said Stern.

Download a PDF of the Law: Marriage, Divorce and Family Relations Law.