What is Cohabitation?

This is when two people who are not married to each other live together as a couple but without the payment of lobola or without registering such relationship as a marriage in terms of the law.

Is Cohabitation recognised as a marriage at law?

Cohabitation or (kubika mapoto) is not recognised as a marriage in terms of Zimbabwean law. The law does not recognise such a relationship as a marriage.

Do laws that govern marriages in Zimbabwe protect such unions?

In the event that such relationship terminates, in most cases issues to do with property sharing arise but the sad part is that laws that govern marriages in Zimbabwe do not apply to cohabitation relationships since this can either be recognised as a union of any kind, registered or unregistered. In the end it therefore leaves either party disadvantaged usually in the event that such relationship is prolonged and parties have made permanent arrangements of staying together as if they are married and in the process acquires property together with either party contributing to such acquisition of property directly or indirectly. Cohabitation therefore leaves the parties to such a relationship at the mercy of the courts, that is if there is any mercy at all.

Should the laws be amended to encompass cohabitation relationships at the same level as unregistered marriages?

SONIA R. FASHI

Adultery damages

Should we really sue someone (an adult for crying out loud) for having an affair with a married man or woman?  Aren’t these adultery damages archaic? What is your take on these damages?

What does the law say pertaining these damages?

Adultery damages are legal. Justice Mwayera in a recent judgment ruled that, “adultery damages are a legal claim which is meant to protect the sanctity of marriage”. She stated that decisions of foreign courts to declare such damages unconstitutional were not binding in Zimbabwe. In terms of Zimbabwe policy and values, adultery remains wrongful and unlawful as it serves to compensate the injured party. She expounded that the marriage institution is founded upon morals and the Constitution which is the supreme law of the country that protects that very morally, underpinned relationship. Intrusion in the marriage institution by adultery therefore remains wrongful and there is nothing unconstitutional about an adultery damages claim.”

Who can sue for adultery damages?

The type of marriage determines who can sue for such damages. In a Civil Marriage [Chapter 5:11], the husband or wife can sue a third party for the said damages. In a Registered Customary Law Marriage [Chapter 5:07], it is only the husband who can sue the third party because such marriage is potentially polygamous (it allows a man, if he so wishes to marry more than one wife but the woman cannot do so). Pertaining an Unregistered Customary Law Union (UCLU), this union is not registered but lobola has been paid, in this union, only the man can claim adultery damages since the union is also potentially polygamous and women in these unions have no right to sue for adultery damages.

Who can be sued for adultery damages?

Unfortunately the law provides that, it is only the third party who can be sued for adultery damages. The third party is the person who interferes into the marriage of the spouses.

South Africa recently outlawed these damages. Should we follow suit? Should spouses be responsible for protecting and safeguarding their marriage rather than making a legal claim against someone for having a consensual affair with her husband or his wife? Why sue the third party and not the adulterous spouse for adultery damages?.

SONIA R. FASHI