Tag: marriage

NEW MARRIAGES ACT- FAQs

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Q: WHEN DID THE MARRIAGES ACT [CHAPTER 5:17] COME INTO EFFECT ?

A: The Marriages Act [Chapter 5:17] came into effect on the 16th of September 2022 through the proclamation in SI 164/2022.

Q: IS A CIVIL PARTNERSHIP A MARRIAGE?

A: No. It is a relationship between a man and a woman that are above the age of 18 and have satisfied the requirements laid out in terms of Section 41 of the Marriages Act [Chapter 5:17] .

Q: CAN A HUSBAND OR WIFE IN A CIVIL MARRIAGE PARTAKE IN A CIVIL PARTNERSHIP?

A: Yes – Spouses that are married in terms of the laws of the country can engage in a civil partnership.

Q: CAN A MARRIED PERSON THAT HAS A CIVIL PARTNER BE ARRESTED FOR BIGAMY?

A: No. A party to a civil marriage can engage in a civil partnership and they are not guilty of committing the crime of bigamy, as a civil partnership is not a marriage hence no crime has been committed. Section 41(6) of the Marriages Act [Chapter 5:17];

(6) It is here provided that, by virtue of the partners dissolving their civil partnership, neither of them shall be deemed to be guilty of bigamy contrary to section 104 of the Criminal Law Code if either of them is legally married to someone else.

Q: CAN MY SPOUSE’S CIVIL PARTNER CLAIM THE PROPERTY THAT I OWN IF I AM LEGALLY MARRIED?

A:  The only property shared is that which was acquired by the civil parties during the subsistence of the relationship. Matrimonial property owned by one’s spouse shall not be shared by a civil partner. The Court, when making its order with regard to property sharing upon dissolution of the civil partnership, takes into account the rights and interests of the spouse of the civil partner. Section 41(5) of the Marriages Act states that

(5) Where one of the persons in a civil partnership is legally married to someone else (hereinafter called the “spouse of the civil partner”), a court applying sections 7 to 11 of the Matrimonial Causes Act [Chapter 5:13] to the division, apportionment or distribution of the assets of the civil partnership shall pay due regard to the rights and interests of the spouse of the civil partner and ensure that its order shall not extend to any assets which are proved, to the satisfaction of the court, to be assets properly belonging to the spouse of the civil partner.

 

This is for general information only – please contact a Lawyer for your questions.

 

REAL RIGHTS IN A MATRIMONIAL PROPERTY

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 CASE ANALYSIS – JANE MUSINDO & ANOR VERSUS LEOCADIA KEREKE (NEE MUROIWA) HMA 32/22

This was recently heard appeal from the judgement handed down in the Magistrates Court in Bikita. The case before the court was one for the eviction of a “small house” (1st Appellant) by the 2nd Respondent’s wife “main house”. The facts of the case shall be discussed briefly below.

The 2nd Appellant and Respondent were married in terms of the Marriage Act [Chapter 5:11] formerly known as the [Chapter 37] marriage which provided for one man and one wife in the year 1966. Their union was blessed with children who have all attained majority status. The 2nd Appellant during the course of his marriage had been unfaithful in the union for a number of times.

The Appellants were involved in an open adulterous affair and sometime in 2015, 1st Appellant moved into the 2nd Appellants and Respondents matrimonial homestead called Kureke homestead were she erected a structure of her own and she lived there with the 2nd Respondent. From the onset of this arrangement no abuse or bad blood was alleged or spoken of – however the Respondent alleges that at some point there was abuse became unbearable to the extent that she, on numerous occasions, had to leave her home to live with her relatives.

The Respondent after amendment of her summons in the Magistrates Court sought

  • The eviction of the 1st Appellant from Kereke homestead and
  • An interdict restraining 1st appellant from continuing with her adulterous relationship with the 2nd

The 1ST Appellant raised the points that the Respondent had no locus standi in judicio (legal standing) as well as that the wife had no real rights in respect of the property rather she had personal rights which were enforceable against her husband. The Respondent highlighted that by virtue of her marriage to the 2nd Appellant she had the right to institute the action. The court accepted the Respondent’s position and granted the order as sought above.

The appellants aggrieved by the decision of the court approached the High Court. On appeal the 1st appellant averred that she was married to the 2nd appellant despite him being married to the Respondent. She further highlighted that she constructed a house on the premises and stayed there by virtue of the invitation extended to her by the 2nd Appellant who was opposed to her eviction from the homestead as he considered her (1st Appellant) his wife. She further denied abusing the Respondent in any manner. The appellants’ grounds of appeal were as follows:

Grounds of Appeal

  1. The court a quo erred in granting an order for eviction of the 1st appellant from the Kereke homestead when the respondent had dismally failed to establish locus standi for eviction proceedings over an immovable property that is not registered in her name.
  2. The learned magistrate misdirected himself by delving into issues of adultery and sanctity of marriages solemnised in terms of [Chapter 5:11] which issues had not been placed before the court for determination. The court went on a frolic of its own and failed to make a determination on the issues which had been placed before it.
  3. The court a quo erred by failing to appreciate that the 1st appellant should not be evicted from the homestead of the 2nd appellant as she was residing there under his consent.

With regard to the first ground of appeal the court stated that the court had erred by looking at the issues of adultery and sanctity of marriage as they were not the matters that were set to be determined by the honourable court.

With the second point of appeal regarding locus standi the court cited the case of Maponga v Maponga & others 2004 (1) ZLR 63 (H) at 68D-E MAKARAU J held;

“It would appear to me in summary that the status of a wife does not grant her much in terms of rights to the immovable property that belongs to her husband. She only has limited rights to the matrimonial home that she and her husband set up. Those rights are personal against the husband and can be defeated by the husband providing her with alternative suitable accommodation or the means to acquire one. The husband can literally sell the roof from above her head if he does so to a third party who has no notice of the wife’s claim.”

The Respondent (wife in this instance) has limited rights in respect of the Kureka homestead despite it being the matrimonial home as she has personal rights, which can only be exercised against her husband. Further the first Appellant being there by virtue of an invitation extended by the 2nd Appellant who has real rights in respect of the property is entitled to continue living at the homestead. The court cited the below listed constitutional provisions when highlighting the need for the alignment of property laws with the provisions of the Constitution;

25 Protection of the family

The State and all institutions and agencies of government at every level must protect and foster the institution of the family and in particular must endeavour, within the limits of the resources available to them, to adopt measures for—

(a)  the provision of care and assistance to mothers, fathers and other family members who have charge of children; and

(b)  the prevention of domestic violence.

26 Marriage

The State must take appropriate measures to ensure that—

(c)  there is equality of rights and obligations of spouses during marriage and at its dissolution;

56 Equality and non-discrimination

  • All persons are equal before the law and have the right to equal protection and benefit of the law

The Court in addressing the position of locus standi cited the constitutional provisions above and how they should align with the property laws, whilst emphasising that they are trumped by property rights. It was then found that the court erred in its decision as the Respondent failed to satisfy the foundation of her right to institute eviction proceedings (real rights in the property).

In conclusion the court upheld the appeal, preventing the 1st Appellant from being evicted, and the Respondent being ordered to pay the 1st Appellant’s costs on an attorney client scale.

This article is for general information purposes only – seek the advice of a Lawyer

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.