Year: 2021

FAMILY LAW- Types of Marriages in Zimbabwe

Types of Marriages in Zimbabwe

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FAMILY LAW: Types of Marriages in Zimbabwe

There are three types of marriages in Zimbabwe and these are Civil Marriage (registered under Marriage Act, Customary Marriage registered under Customary Marriages Act and an Unregistered Customary Law Union (kuchaya mapoto). A marriage can only be entered into by parties of the opposite sex who are 18 years and above.

  1. Civil Marriage

This is a marriage governed and registered under the Marriage Act [Chapter 5:11) formerly known as Chapter 37. This kind of marriage is monogamous meaning it is between one husband and one wife. A wife or husband cannot contract any other marriage after having entered into this kind of marriage if they do so they would have committed an offence called bigamy and an aggrieved party can sue for adultery damages. In terms of the Married Persons Property Act 1982 all marriages in Zimbabwe from 1929 are out of community of property. This means in this type of marriage a spouse can own or dispose of property registered in his or her individual name without the consent of the other spouse. In the recent case of Chigwada vs Chigwaga SC-188-20 it was ruled that a spouse is not entitled to bequeath property registered in his or her individual name through a will to the other spouse but can do so to anyone he or she chooses. However, parties married in terms of this type marriage can own properties jointly.

A civil marriage can only be terminated or cancelled by the High Court through a process called a divorce. A divorce is governed by the Matrimonial Causes Act [Chapter 5:13]. This Act provides for the permissible grounds of divorce, distribution of property during a divorce and maintenance for minors and spouse. During a divorce the court also determines the issue to do with maintenance, custody and access of minor children.

2. Customary Marriage

This type of marriage is governed and registered under the Customary Marriages Act [Chapter 5:07]. This marriage is potentially polygamous meaning a husband is allowed to have more that one wives. This however is not the same for women. A husband is allowed to sue for adultery damages if his wife is unfaithful whilst the wife cannot do the same. The marriage is registered at the Magistrates Court after payment of lobola. The marriage is also out of community of property hence the law that applies to a civil marriage in relation to property also applies. Parties to this marriage can upgrade to a civil marriage.

A customary marriage is dissolved by the Magistrates Court as provided for in the Magistrates Court Act [Chapter 7:10]. In terms of the Customary Marriages Act the dissolution of this type of marriage is governed by the Matrimonial Causes Act. The law that applies to a civil marriage upon dissolution also applies to this type of a marriage. The Magistrate Court also deals with the issues of distribution of property, maintenance, custody and access of the minor children.

3. Unregistered Customary Law Union (UCLU)

This is a customary law union where lobola is paid but parties do not register their marriage in terms of the law hence the name unregistered customary law union. It is commonly known as kuchaya mapoto. This type of marriage is also potentially polygamous. This type of marriage is not fully recognized by the law serve for the purposes of the inheritance, maintenance and a claim for loss of life support from a third party as per Chawanda vs Zimnat Insurance Co.Ltd.1990 (2) ZLR 143 S. This marriage becomes difficult to prove on the face of it because there is no marriage certificate unlike with the other types of marriages.

This type of union is not dissolved by the court hence the dissolution or separation is done customarily. In terms of this union a woman is only entitled to what is known as ‘mawoko” property which does not amount to much but a stove, utensils and linen. This undoubtedly brings grave injustice to women due to the modern day approach of marriages where women contribute financially to the acquisition of properties. However, parties may approach the court for distribution of property with resort to principles of law such as an unjust enrichment claim or sharing of property on the basis of an existence of a tacit universal partnership. It is difficult to prove this claim hence the need to engage services of legal practitioners. This marriage is however considered a marriage for purposes of inheritance thus once it is confirmed that the named individual had lobola paid they can qualify to be a surviving spouse for the purposes of inheritance.

family law - Dissolution of an Unregistered Customary Law Union (UCLU)

Family Law: Dissolution of an Unregistered Customary Law Union (UCLU)

Posted by nnlaw on with 0 Comment

Dissolution of an Unregistered Customary Law Union (UCLU)

What is an unregistered customary union? –It is a customary law union wherein lobola is paid but parties do not register their marriage in terms of the law hence the name unregistered customary law union. It is commonly known as kuchaya mapoto. This type of marriage is also potentially polygamous. This type of marriage is not fully recognized by the law serve for the purposes of the inheritance, maintenance and a claim for loss of life support from a third party.

This type of union is not dissolved by the court hence the dissolution or separation is done customarily. The provisions of the Matrimonial Causes Act which applies to a civil marriage and a registered customary law marriage does not apply. There are no divorce proceedings under this type of marriage but a rejection token is given to the spouse as a sign that the other spouse wants to dissolve the marriage. The token has to be in the form of money. It does not matter whether it is a coin or note.

In terms of this union a woman is only entitled to what is known as ‘mawoko” property which does not amount to much but a stove, utensils and linen. This undoubtedly brings grave injustice to women due to the modern day approach of marriages where women contribute financially to the acquisition of properties. Generally in the absence of an agreement the distribution of the properties may be done unfairly with one party (usually the husband) taking  most of the property while the other party is left with very little or nothing However, parties may approach the court for distribution of property with resort to common law principles  such as an unjust enrichment claim or sharing of property on the basis of an existence of a tacit universal partnership .There is however a bigger burden of proof than in the other types of marriages to prove that you are entitled to the property.

Tacit Universal Partnership

 Under common law when parties in an UCLU decide to go their separate ways, that becomes the end of the partnership or relationship. The tacit universal partnership is a useful mechanism created by the courts to allow a cohabitee to share in assets at dissolution of the relationship. This is a useful remedy for distribution of property for spouses in an unregistered customary law union.

A party can approach the court for distribution of property in a situation where both partners contributed in the acquisition of the property that they shared during their term of living together. The court looks at a number of factors before sharing the property and share the property on the basis of the existence of a tacit universal partnership. A universal partnership will exist if the following are present:

(a) Each of the partners brings something into the partnership;

(b) The business or acquisition of property is carried on for the joint benefit of the parties;

(c) The object of the partnership should be to make a profit;

(d) The contract should be a legitimate one. (In a universal partnership the acquisition of property does not require an express agreement. Like any other contract it can also come into existence by tacit agreement, that is by an agreement derived from the conduct of the parties)