Tag: Customary Marriages

The New Marriages Act – [Chapter 5:15]

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The Marriage Act [Chapter 5:15] (hereinafter referred to as the “Act”) seeks to repeal the current Marriage Act [Chapter 5:11] and the Customary Marriage Act [Chapter 5:07]. These two statues catered to the different marriage regimes in Zimbabwe. The Act looks to have all marriages in Zimbabwe governed by one statute.

In terms of section 2 of the Act, the President of the Republic of Zimbabwe will announce the date from which the Act will become operational:

1 Short Title and Date of Commencement

(2) This Act shall come into operation on a date to be fixed by the President by notice in the Gazette.

To begin with the Act pegs the minimum age of marriage at 18. There are various statues that have been amended as a result of this provision, such as the General Law Amendment Act. The Guardianship of Minors Act prior to its amendment provided for the marriage of a minor with the consent of their parent/s or guardian/s. The Act seeks to prevent the exploitation of child/ren by introducing a jail term and or a fine for adults that facilitate child marriages:

3 Minimum age of marriage

(3) Any person, other than the child concerned, who contravenes subsection (2), shall be guilty of an offence and liable to a fine not exceeding level 10 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.

[This provision excludes ONLY the child from criminal liability, and imputes the liability on the parent/s or guardian/s of the minor.]

The above cited provision seeks to safeguard the rights of the girl and boy child by advocating for the abolition of child marriage. This change will also curb the extent of sexual exploitation of the children by sexual predators.

Marriages in Zimbabwe are between two parties of the opposite sex (male and female) that are eighteen years of age and above. Despite neighboring jurisdictions observing same sex marriage it is emphasised that in terms of the laws of the country same sex marriages are not recognized nor marriages of parties that have a certain degree of relation. Section 4 of the Act provides that both parties to the marriage must consent to their union for it to be solemnized.

Another change that has been introduced by the Act is the addition of Chiefs as marriage officers when it comes to solemnizing customary law marriages in their districts.

Prior to the Act there were three types of marriages that were recognized under the laws of the Zimbabwe. The marriages are listed below in accordance to their hierarchy;

  • Civil Marriages in terms of the Marriage Act [Chapter 5:11]
  • Customary Marriage in terms of the Customary Marriages Act [ Chapter 5:07]
  • Unregistered Customary law union.

The Act now recognizes more marriages in Zimbabwe.

  1. CIVIL MARRIAGE

This is a monogamous marriage, which means that only one husband and one wife are involved. In the event that a spouse marries someone else, they have committed the crime of bigamy. An offended party in this sort of marriage (by virtue of their spouse’s infidelity) may opt to sue for adultery damages.

  1. CUSTOMARY LAW MARRIAGE

This marriage is between one man and at least one wife; it has the potential to be polygamous depending on the male counterpart. Only the husband in this type of a marriage can marry more than one wife; with the wife in such a marriage not being able to marry another husband. The husband can sue for adultery damages in the event of infidelity. If the husband has only one wife, the wedding can be upgraded to a civil marriage, eliminating the customary law marriage.

  1. UNREGISTERED CUSTOMARY LAW UNION

This is a union where lobola is paid by the husband to the wife’s family, but the couple do not register the marriage hence the title unregistered customary law union.

The Act now recognizes in addition to the 3 marriages, the Qualified Civil Marriage and the Civil partnership. In terms of the Act the number of marriages that will now be observed in Zimbabwe has increased from the traditional 3. The marriages have certain aspects that make them valid in terms of the law.

Of importance to note is the fact that all the marriages will be equal in terms of the law. What this means in terms of Estate Administration and inheritance is yet to be discovered. The next article will focus on the new marriages that are introduced by the Marriage Act [Chapter 5:15].

This article is for general information purposes only. Please contact a Lawyer for advice.

FAMILY LAW- Types of Marriages in Zimbabwe

Types of Marriages in Zimbabwe

Posted by nnlaw on with 11 Comments

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.