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)
