High Court Rules That A Married Spouse Without Title Deeds Can't Evict Their Spouse's Lover

In a recent ruling by the High Court in Masvingo, it was determined that a married spouse without title deeds does not have the authority to evict their spouse’s lover from the matrimonial home.

Justices Garainesu Mawadze and Sunsley Zisengwe granted the appeal, with Justice Zisengwe delivering the judgment. He stated that a spouse without legal ownership can only seek damages and lacks the legal standing to evict their spouse’s lover. Justice Zisengwe expressed dissatisfaction with the current law, as it undermines women’s rights and contradicts the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), which Zimbabwe has ratified. Zisengwe said:

I find the proposition that a husband is at liberty to bring live-in girlfriends into the matrimonial home with impunity is inimical to the principle of equality between the sexes and appears to be providing a right carte-blanche to men to bring into the matrimonial home live-in mistresses.

Not only does that offend the express provisions of the Constitution as aforesaid, but also runs contrary to the ideal spouse in the CEDAW which Zimbabwe has ratified. A married woman should not be placed in the invidious and inequitable position where she is compelled to choose between continuing with the marriage and endure this kind of severe emotional abuse or simply get a divorce.

Alongside a claim for adultery damages against a paramour and an action for divorce against the husband, a married woman should also have recourse by way of eviction against a woman who literally hops into the matrimonial bed with her husband. Regrettably respondent’s claim for an order interdicting the 1st appellant from continuing with her adulterous relationship with the 2nd appellant somehow fell by the wayside and ultimately was not an issue for determination in this appeal.

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He emphasized that women in monogamous marriages should have the right to initiate eviction proceedings against their spouse’s lovers to protect the sanctity of their marriages.

Some context:

In 2021, Jane Musindo (42) was granted an appeal after being evicted from the Kereke homestead by Mbuya Leocadia Kereke nee Muroiwa (74). Leocadia and her boyfriend, Sekuru Augustine Tongai Kereke (83), were the appellants in the appeal. Sekuru Kereke claimed that Musindo is his second wife and cares for him more than his wife of 56 years. The ruling confirmed their open adulterous relationship, with Justice Zisengwe referring to Leocadia as Sekuru Kereke’s mistress. The High Court ruled that Mbuya Kereke does not own the homestead, so she lacks the legal authority to evict Leocadia, despite their marriage under the Marriage Act [Chapter 5:11] in 1966. Mbuya Kereke can only seek damages.

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