From time immemorial the institution of marriage has been the thread that holds societies together, the pillar on which human development is hinged on. Like any classic fairytale, marriage also has its dark sides which have led to divorce or annulment of marriages not only in Zimbabwe but the world over.
Marriage was and is meant to be a lifetime union. However, the current rampant rise of divorces in Zimbabwe and the staggering number of divorces granted by the High Court in recent years is a serious cause for concern, that speaks to the fact that the institution of marriage is not as permanent as perceived before people commit to spending their lives together. It is easy to put it on paper but to walk the talk has proved to be another different dimension.
In most instances, the parties do not get the blissful experience of matrimony that they assumed they would have and the marriage comes to an end. The thought of divorce kicks in and parties assume that the process is as simple as a promising lifetime commitment to a partner. Divorce or marriage annulment is a constitutional imperative as much as is the marriage act that unites parties in a marriage.
To end a marriage following due procedure within the confines of the law requires both parties to understand the process and to be in a position to define what divorce and the process really mean at law. This helps parties to make rational decisions which are not informed by cultural perceptions and emotions. Failure to understand the process and the law that governs divorce proceedings is the sole reason why some proceedings end up being murky and turn into wars known as contested divorce.
They are primarily two things that often cause problems for parties seeking to annul a marriage. The first being that of distribution of property upon divorce and the second is custody and access rights to the minor children born of the marriage.
It is very important to stress that the type of marriage one enters into affects their property rights upon divorce. Thus, explaining the types of marriages that we have in Zimbabwe is very crucial.
Types of Marriages
Basically, there are three types of marriages recognized in Zimbabwe which are:
- A marriage contracted in terms of the Marriage Act [Chapter 5:11] (once known as the Chapter 37 marriage). This is a monogamous marriage and is registered in accordance with the laws of the land.
- A marriage contracted in terms of the Customary Marriage Act [Chap 5:02 ] (once Chapter 231). This marriage follows customary rites and tradition and as such, a man is allowed to have more than one wife. This marriage is also registered in accordance with the laws of Zimbabwe.
- An unregistered customary law union. In terms of this marriage, the traditional marriage ceremonies are observed such as the payment of lobola. However, this marriage is not registered in accordance with the law.
- Co-habitation is where parties stay together as husband and wife without having observed any formalities of marriage, whether customary or otherwise. Although this is not classified as a marriage, it is now a popular trend in today’s world
Distribution of property at divorce following the first two types of marriage
With regards to the first two types of marriages, the courts make use of the Matrimonial Causes Act [Chap 5:13]. In terms of this Act, the courts are obliged to make use of the principles set out in that act with regards to distributing property. These principles include the income earning capacity of the parties; direct or indirect contribution made by each spouse to the family, including contributions made by looking after the home and caring for the family and any other domestic duties; duration of the marriage amongst other factors.
It must be noted that the courts are directed to consider all the circumstances of the case and not just a single factor in order to arrive at a just and equitable result. Generally, the starting point for the distribution of the property is the division of the property into ‘his’, ‘hers’ and ‘theirs’. This simply means that each spouse is given what belongs to them individually and then there is another lot which is what is jointly owned by the parties. As has been stated above, this is only the starting point, at the heart of the distribution lies an objective to produce a just and equitable result which will aim to put the parties in the position they would have been had the marriage continued. The court can then proceed to take from each of the parties’ share to ensure that the objective mentioned above is met.
On the same breath, it is essential to understand that the Matrimonial Causes Act states that what is to be distributed are ‘assets of the spouses’ and not ‘matrimonial assets’. Therefore, even assets acquired before the marriage or after separation but before the divorce can be distributed by the court. Others have fallen into error by believing that what is distributed is limited to what was obtained by the parties during the subsistence of the marriage.
Distribution of property at divorce following the third type of marriage
The third type of marriage, that is, the unregistered customary law union has posed some challenges on the distribution of property. Whilst in certain instances it is recognized as a valid marriage, it is not acknowledged as such in the Matrimonial Causes Act and thus the principles emanating from the Act are inapplicable. Accordingly, parties to this marriage do not ‘divorce’ but can have their union dissolved by the court which brings with it, the distribution of the property.
The general principle in customary marriages is that the wife has no claim to the property beyond the traditional ‘umai’ or ‘maoko’ property. All property acquired during the marriage is deemed to be the husband’s property. This is simply because customary law does not recognize a woman’s right to property.
Obviously, this position is not solid in today’s world and the courts have found ways of ensuring that the wife in such a situation does not walk away empty-handed. Therefore, the courts can in certain instances depart from the use of customary law and make use of the remedies under general law which provides a basis for awarding the wife a share of the assets. These remedies include unjust enrichment, tacit universal partnership and joint ownership. It must be emphasized though that this is not the position of the law but a form of judicial innovation.
How about separation after mere co-habitation?
It is of paramount importance to note that the principles that are applied under unregistered customary law unions are the same ones applied with parties who co-habit. Co-habitation is where parties stay together as husband and wife without having observed any formalities of marriage, whether customary or otherwise.
It remains co-habitation even where the parties have been staying together for several years. In the case of Goncalves v Rodrigues (2003), the couple had been cohabiting for several years and the boyfriend successfully sued for a fifty-percent share of the immovable property bought by his girlfriend on the grounds of unjust enrichment. The property had been purchased by his girlfriend but he had made extensive improvements thereon. One in such a relationship can also make a claim to the property on the basis of joint ownership or tacit universal partnership.
In a nutshell, these are the principles and procedures that are applicable upon divorce or separation. Parties seeking to annul a marriage should familiarize with these principles for the purposes of peaceful divorce proceedings short of a smoking barrel and humiliation. Remember life goes on after your marriage has failed. Carrying out divorce proceeding in a dignified way is good for both parties.
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